Custom Federal Regulations Service™

**This is supplemental material**

**for Book B of your set of**

**Federal Regulations**

Title 38, Part 3

*Adjudication*

**Veterans Benefits Administration**

Supplement No. 70

Covering period of *Federal Register* issues

through February 21, 2006

Copyright © 2006 Jonathan Publishing

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Copyright © 2006 Jonathan Publishing

> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book B***

**Code of Federal Regulations**

**Title 38, Part 3**

***Adjudication***

**Veterans Benefits Administration**

**Supplement No. 70**

25 February 2006

Covering the period of Federal Register issues

through February 21, 2006

When **Book B** was originally prepared, it was current through final
regulations published in the *Federal Register* of 9 August 1991. 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 begins on page B-5 of
Book B, *Adjudication*.

> **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
> B-5) 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 B-4.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page B-5)---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 B, Supplement No. 70**

**February 25, 2006**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

B-11 to B-14 B-11 to B-14 Index to Book B

B-19 to B-20 B-19 to B-20 Index to Book B

B-23 to B-24 B-23 to B-24 Index to Book B

**3.40-1 to 3.40-2 3.40-1 to 3.40-2 §3.40**

**3.42-1 to 3.43-3 3.42-1 to 3.43-3 §§3.42--3.43**

3.400-1 to 3.400-2 3.400-1 to 3.400-2 Contents of Effective Dates

3.405-1 to 3.405-2 3.405-1 to 3.405-2 §3.405

**3.500-1 to 3.500-2 3.500-1 to 3.500-2 Contents of Reductions**

**and Discontinuances**

**3.505-1 to 3.505-2 3.505-1 to 3.505-2 §3.505**

3.1600-1 to 3.1600-4 3.1600-1 to 3.1600-4 §3.1600

**Be sure to complete the**

***Supplement Filing Record* (page B-5)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book B, Supplement No. 70**

**February 25, 2006**

***Note***: 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 B (*Adjudication*) was originally
supplemented four times a year, in February, May, August, and November.
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 16 February 2006, the VA published a final rule, effective that
same date, to change the rate of compensation payments to certain
veterans of the Philippine Commonwealth Army and recognized guerrilla
forces who reside in the United States; change the amount of monetary
burial benefits that VA will pay to survivors of certain veterans of the
Philippine Commonwealth Army and recognized guerrilla forces who
lawfully reside in the United States at death; add service in the
Philippine Scouts as qualifying service for payment of compensation,
dependency and indemnity compensation and monetary burial benefits at
the full-dollar rate; and provide for payment of DIC at the full-dollar
rate to survivors of certain veterans of the Philippine Commonwealth
Army and recognized guerrilla forces who lawfully reside in the United
States. Changes:

• In §3.40, revised paragraphs (a) and (b);

• In §3.42, revised paragraphs (a)(4), (b) introductory text, (c)(1)
introductory text, (c)(2)--(4), (d), and (e);

• In §3.43, revised paragraphs (a)(4), (b) introductory text, and
(c)(2)--(4);

• Revised §§3.405 and 3.505; and

• In §3.1600, revised paragraphs (a) and (b) introductory text.

3.312 Cause of death 3.312-1

3.313 Claims based on service in Vietnam 3.313-1

3.314 Basic pension determinations 3.314-1

3.315 Basic eligibility determinations; dependents, loans, education
3.315-1

3.316 Claims based on chronic effects of exposure to mustard gas 3.316-1

3.317 Compensation for certain disabilities due to undiagnosed illnesses
3.316-1

3.318--3.320 \[Reserved\]

3.321 General rating considerations 3.321-1

3.322 Rating of disabilities aggravated by service 3.322-1

3.323 Combined ratings 3.323-1

3.324 Multiple noncompensable service-connected disabilities 3.324-1

3.325 \[Reserved\]

3.326 Examinations 3.326-1

3 327 Reexaminations 3.327-1

3 328 Independent medical opinions 3.328-1

3.329 \[Removed\]

3.330 Resumption of rating when veteran subsequently reports for

Department of Veterans Affairs examination 3.330-1

3.331--3.339 \[Reserved\]

3.340 Total and permanent total ratings and unemployability 3.340-1

3.341 Total disability ratings for compensation purposes 3.341-1

3.342 Permanent and total disability ratings for pension purposes
3.342-1

3.343 Continuance of total disability ratings 3.343-1

3.344 Stabilization of disability evaluations 3.344-1

**Ratings for special purposes**

3.350 Special monthly compensation ratings 3.350-1

3.351 Special monthly dependency and indemnity compensation, death

compensation, pension and spouse's compensation ratings 3.351-1

3.352 Criteria for determining need for aid and attendance and

"permanently bedridden" 3.352-1

3.353 Determinations of incompetency and competency 3.353-1

3.354 Determinations of insanity 3.354-1

3.355 Testamentary capacity for insurance purposes 3.355-1

3.356 Conditions which determine permanent incapacity for self-support
3.356-1

3.357 Civil service preference ratings 3.357-1

3.358 Compensation for disability or death from hospitalization, medical

or surgical treatment, examinations or vocational rehabilitation

training (§3.800) 3.358-1

3.359 Determination of service connection for former members of the

Armed Forces of Czechoslovakia or Poland 3.359-1

3.360 Service-connected health-care eligibility of certain persons

administratively discharged under other than honorable condition 3.360-1

3.361 Benefits under 38 U.S.C. 1151(a) for additional disability or
death due to

hospital care, medical or surgical treatment, examination, training and

rehabilitation services, or compensated work therapy program 3.361-1

3.362 Offsets under 38 U.S.C. 1151(b) of benefits awarded

under 38 U.S.C. 1151(a) 3.362-1

3.363 Bar to benefits under 38 U.S.C. 1151 3.363-1

**Rating considerations relative to specific diseases**

3.370 Pulmonary tuberculosis shown by X-ray in active service 3.370-1

3.371 Presumptive service connection for tuberculous disease; wartime

and service on or after January 1,1947 3.371-1

3.372 Initial grant following inactivity of tuberculosis 3.372-1

3.373 \[Reserved\]

3.374 Effect of diagnosis of active tuberculosis 3.374-1

3.375 Determination of inactivity (complete arrest) in tuberculosis
3.375-1

3.376--3.377 \[Reserved\]

3.378 Changes from activity in pulmonary tuberculosis pension cases
3.378-1

3.379 Anterior poliomyelitis 3.379-1

3.380 Diseases of allergic etiology 3.380-1

3.381 Service connection of dental conditions for treatment purposes
3.381-1

3.382 \[Reserved\]

3.383 Special consideration for paired organs and extremities 3.383-1

3.384 \[Reserved\]

3.385 Disability due to impaired hearing 3.385-1

**Effective Dates**

3.400 General 3.400-1

3.401 Veterans 3.401-1

3.402 Surviving spouse 3.402-1

3.403 Children 3.403-1

3.404 Parents 3.404-1

3.405 Filipino veterans and their survivors; benefits at the full-dollar
rate 3.405-1

**Apportionments**

3.450 General 3.450-1

3.451 Special apportionments. 3.451-1

3.452 Situations where benefits may be apportioned. 3.452-1

3.453 Veterans compensation or service pension or retirement pay.
3.453-1

3.454 Veterans disability pension. 3.454-1

3.458 Veteran's benefits not apportionable. 3.458-1

3.459 Death compensation. 3.459-1

3.460 Death pension. 3.460-1

3.461 Dependency and indemnity compensation. 3.461-1

**Reductions and discontinuances**

3.500 General 3.500-1

3.501 Veterans 3.501-1

3.502 Surviving spouses 3.502-1

3.503 Children 3.503-1

3.504 Parents; aid and attendance 3.504-1

3.505 Filipino veterans and their survivors; benefits at the full-dollar
rate 3.505-1

**Hospitalization adjustments**

3.551 Reduction because of hospitalization 3.551-1

3.552 Adjustment of allowance for aid and attendance 3.552-1

3.553--3.555 \[Reserved\]

3.556 Adjustment on discharge or release 3.556-1

3.557 \[Removed and reserved\] 3.557-1

3.558 Resumption and payment of withheld benefits; incompetents

with estates that equaled or exceeded statutory limit 3.558-1

3.559 \[Removed and reserved\] 3.559-1

**Adjustments and resumptions**

3.650 Rate for additional dependent 3.650-1

3.651 Change in status of dependents 3.651-1

3.652 Periodic certification of continued eligibility 3.652-1

3.653 Foreign residence 3.653-1

3.654 Active service pay 3.654-1

3.655 Failure to report for Department of Veterans Affairs examination
3.655-1

3.656 Disappearance of veteran 3.656-1

3.657 Surviving spouse becomes entitled, or entitlement terminates
3.657-1

3.658 Offsets; dependency and indemnity compensation 3.658-1

3.659 Two parents in same parental line 3.659-1

3.660 Dependency, income and estate 3.660-1

3.661 Eligibility Verification Reports 3.661-1

3.662--3.664 \[Reserved\]

3.665 Incarcerated beneficiaries and fugitive felons---compensation
3.665-1

3.666 Incarcerated beneficiaries and fugitive felons ---pension 3.666-1

3.667 School attendance 3.667-1

3.668 \[Reserved\]

3.669 Forfeiture 3.669-1

**Concurrent benefits and elections**

3.700 General 3.700-1

3.701 Elections of pension or compensation 3.701-1

3.702 Dependency and indemnity compensation 3.702-1

3.703 Two parents in same parental line 3.703-1

3.704 Elections within class of dependents 3.704-1

3.705--3.706 \[Reserved\]

3.707 Dependents' educational assistance 3.707-1

3.708 Federal Employees' Compensation 3.708-1

3.709 \[Removed\]

3.710 Civil service annuitants 3.710-1

3.711 Improved pension elections 3.711-1

3.712 Improved pension elections; surviving spouses of

Spanish-American War veterans 3.712-1

3.713 Effective dates of Improved pension elections 3.713-1

3.714 Improved pension elections---public assistance beneficiaries
3.714-1

3.715 Radiation Exposure Compensation Act of 1990 3.715-1

**Retirement**

3.750 Retirement pay 3.750-1

3.751 Statutory awards; retired service personnel 3.751-1

3.752 \[Reserved\]

3.753 Public Health Service 3.753-1

3.754 Emergency officers' retirement pay 3.754-1

**Special benefits**

3.800 Disability or death due to hospitalization, etc 3.800-1

3.801 Special acts 3.801-1

3.802 Medal of Honor 3.802-1

3.803 Naval pension 3.803-1

3.804 Special allowance under 38 U.S.C. 3.804-1

3.805 Loan guaranty for surviving spouses; certification 3.805-1

3.806 Death gratuity; certification 3.806-1

3.807 Dependents' educational assistance; certification 3.807-1

3.808 Automobiles or other conveyances; certification 3.808-1

3.809 Specially adapted housing under 38 U.S.C. 801(a) 3.809-1

3.809a Special home adaptation grants under 38 U.S.C. 801(b) 3.809a-1

3.810 Clothing allowance 3.810-1

3.811 Minimum income annuity and gratuitous annuity 3.811-1

3.812 Special allowance payable under section 156 of Pub. L. 97-377
3.812-1

3.813 Interim benefits for disability or death due to chloracne or

porphyria cutanea tarda 3.813-1

New and material evidence 3.156-1

Report of examination or hospitalization as claim for increase or to
reopen 3-157-1

Status of claims 3.160-1

**Concurrent benefits and elections**

Civil service annuitants 3.710-1

Dependency and indemnity compensation 3.702-1

Dependents' educational assistance 3.707-1

Effective dates of Improved pension elections 3.713-1

Elections of pension or compensation 3.701-1

Elections within class of dependents 3.704-1

Federal Employees' Compensation 3.708-1

General 3.700-1

Improved pension elections 3.711-1

Improved pension elections; surviving spouses of

Spanish-American War veterans 3.712-1

Improved pension elections---public assistance beneficiaries 3.714-1

Radiation Exposure Compensation Act of 1990 3.715-1

Two parents in same parental line 3.703-1

**Dependency, income, and estate**

Annual income- pension- Mexican border period and later war periods
3.252-1

Applicability of various dependency, income and estate regulations
3.270-1

Certain transfers or waivers disregarded 3.276-1

Character of income; exclusions and estates 3.261-1

Children; no surviving spouse entitled 3.257-1

Computation of income 3.260-1

Computation of income 3.271-1

Corpus of estate; net worth 3.263-1

Criteria for evaluating net worth 3.275-1

Dependency of parents; compensation 3.250-1

Evaluation of income 3.262-1

Exclusions from income 3.272-1

Eligibility reporting requirements 3.256-1, 3.277-1

Income of parents; dependency and indemnity compensation 3.251-1

Rate computation 3.273-1

Relationship of net worth to pension entitlement 3.274-1

**Effective Dates**

Children 3.403-1

Filipino veterans and their survivors; benefits at the full-dollar rate
3.405-1

General 3.400-1

Parents 3.404-1

Surviving spouse 3.402-1

Veterans 3.401-1

**Evidence requirements**

Birth 3.209-1

Change of status affecting entitlement 3.213-1

Child's relationship 3.210-1

Claims based on attained age 3.208-1

Court decisions; unremarried surviving spouses 3.214-1

Death 3.211-1

Divorce 3.206-1

Evidence from foreign countries 3.202-1

Evidence of dependents and age 3.204-1

Exchange of evidence; Social Security and Department of Veterans Affairs
3.201-1

Marriage 3.205-1

Service records as evidence of service and character of discharge
3.203-1

Social security numbers, mandatory disclosure of 3.216-1

Submission of statements or information affecting entitlement to
benefits 3.217-1

Termination of marital relationship or conduct 3.215-1

Testimony certified or under oath 3.200-1

Unexplained absence for 7 years 3.212-1

Void or annulled marriage 3.207-1

**Forfeiture**

Declaration of forfeiture or remission of forfeiture 3.905-1

Effect of forfeiture after veteran's death 3.904-1

Fraud 3.901-1

General 3.900-1

Subversive activities 3.903-1

Treasonable acts 3.902-1

**General**

Automatic adjustment of benefit rates 3.27-1

Automatic adjustment of section 306 and old-law pension income
limitations 3.28-1

Benefits at DIC rates in certain cases when death is not service
connected 3.22-1

Character of discharge 3.12-1

Commencement of the period of payment 3.31-1

Compensation 3.4-1

Computation of service 3.15-1

Definitions 3.1-1

Dependency and indemnity compensation 3.5-1

Disability and death pension; Mexican border period and later war
periods 3.17-1

Compensation for certain disabilities due to undiagnosed illnesses
3.317-1

Continuance of total disability ratings 3.343-1

Direct service connection- peacetime service before January 1,1947
3.305-1

Direct service connection; wartime and peacetime 3.304-1

Disease subject to presumptive service connection 3.309-1

Examinations 3.326-1

General rating considerations 3.321-1

Independent medical opinions 3.328-1

Multiple noncompensable service-connected disabilities 3.324-1

Permanent and total disability ratings for pension purposes 3.342-1

Presumptive service connection for chronic, tropical, or
prisoner-of-war-

related disease, or disease associated with exposure to certain

herbicide agents; wartime and service on or after January 1, 1947
3.307-1

Presumptive service connection; peacetime service before January 1, 1947
3.308-1

Principles relating to service connection 3.303-1

Proximate results, secondary conditions 3.310-1

Rating of disabilities aggravated by service 3.322-1

Reexaminations 3.327-1

Resumption of rating when veteran subsequently reports for

Department of Veterans Affairs examination 3.330-1

Stabilization of disability evaluations 3.344-1

Total and permanent total ratings and unemployability 3.340-1

Total disability ratings for compensation purposes 3.341-1

**Ratings for special purposes**

Civil service preference ratings 3.357-1

Compensation for disability or death from hospitalization, medical

or surgical treatment, examinations or vocational rehabilitation

training (§ 3.800) 3.358-1

Conditions which determine permanent incapacity for self-support 3.356-1

Criteria for permanent need for aid and attendance

and "permanently bedridden" 3.352-1

Determinations of incompetency and competency 3.353-1

Determination of service connection for former members of the

Armed Forces of Czechoslovakia or Poland 3.359-1

Determinations of insanity 3.354-1

Service-connected health-care eligibility of certain persons

administratively discharged under other than honorable condition 3.360-1

Special monthly compensation ratings 3.350-1

Special monthly dependency and indemnity compensation, death

compensation, pension and spouse's compensation ratings 3.351-1

Testamentary capacity for insurance purposes 3.355-1

**Reductions and discontinuances**

Children 3.503-1

Filipino veterans and their survivors; benefits at the full-dollar rate
3.505-1

General 3.500-1

Parents; aid and attendance 3.504-1

Surviving spouses 3.502-1

Veterans 3.501-1

**Relationship**

Child 3.57-1

Child adopted out of family 3.58-1

Continuous cohabitation 3.53-1

Definition of "living with" 3.60-1

Marriage dates 3.54-1

Marriages deemed valid 3.52-1

Parent 3.59-1

Reinstatement of benefits eligibility based upon

terminated marital relationships 3.55-1

Spouse and surviving spouse 3.50-1

**Retirement**

Emergency officers' retirement pay 3.754-1

Public Health Service 3.753-1

Retirement pay 3.750-1

Statutory awards; retired service personnel 3.751-1

**Special benefits**

Awards under the Nehmer Court Orders for disability or death caused by a

condition presumptively associated with herbicide exposure 3.816-1

Automobiles or other conveyances; certification 3.808-1

Clothing allowance 3.810-1

Death gratuity; certification 3.806-1

Dependents' educational assistance; certification 3.807-1

Disability or death due to hospitalization, etc 3.800-1

Interim benefits for disability or death due to chloracne or

porphyria cutanea tarda 3.813-1

Loan guaranty for surviving spouses; certification 3.805-1

Minimum income annuity and gratuitous annuity 3.811-1

Medal of Honor 3.802-1

**§3.40 Philippine and Insular Forces.**

\(a\) *Regular Philippine Scouts*. Service in the Philippine Scouts
(except that described in paragraph (b) of this section), the Insular
Force of the Navy, Samoan Native Guard, and Samoan Native Band of the
Navy is included for pension, compensation, dependency and indemnity
compensation, and burial allowance. Benefits are payable in dollars at
the full-dollar rate.

\(b\) *Other Philippine Scouts*. Service of persons enlisted under
section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is
included for compensation and dependency and indemnity compensation.
Except as provided in §§3.42 and 3.43, benefits based on service
described in this paragraph are payable at a rate of \$0.50 for each
dollar authorized under the law. All enlistments and reenlistments of
Philippine Scouts in the Regular Army between October 6, 1945, and June
30, 1947, inclusive, were made under the provisions of Pub. L. 190 as it
constituted the sole authority for such enlistments during that period.
This paragraph does not apply to officers who were commissioned in
connection with the administration of Pub. L. 190. (Authority: 38 U.S.C.
107)

\(c\) *Commonwealth Army of the Philippines*.

\(1\) Service is included, for compensation, dependency and indemnity
compensation, and burial allowance, from and after the dates and hours,
respectively, when they were called into service of the Armed Forces of
the United States by orders issued from time to time by the General
Officer, U.S. Army, pursuant to the Military Order of the President of
the United States dated July 26, 1941. Service as a guerrilla under the
circumstances outlined in paragraph (d) of this section is also
included. Service on or after July 1, 1946, is not included. Except as
provided in §§3.42 and 3.43, benefits based on service described in this
paragraph are payable at a rate of \$0.50 for each dollar authorized
under the law. (Authority: 38 U.S.C. 107)

\(2\) Unless the record shows examination at time of entrance into the
Armed Forces of the United States, such persons are not entitled to the
presumption of soundness. This also applies upon reentering the Armed
Forces after a period of inactive service.

\(d\) *Guerrilla service*.

\(1\) Persons who served as guerrillas under a commissioned officer of
the United States Army, Navy or Marine Corps, or under a commissioned
officer of the Commonwealth Army recognized by and cooperating with the
United States Forces are included. (See paragraph (c) of this section.)
Service as a guerrilla by a member of the Philippine Scouts or the Armed
Forces of the United States is considered as service in his or her
regular status. (See paragraph (a) of this section.)

\(2\) The following certifications by the service departments will be
accepted as establishing guerrilla service:

\(i\) Recognized guerrilla service;

\(ii\) Unrecognized guerrilla service under a recognized commissioned
officer only if the person was a former member of the United States
Armed Forces (including the Philippine Scouts), or the Commonwealth
Army. This excludes civilians.

A certification of "Anti-Japanese Activity" will not be accepted as
establishing guerrilla service.

\(e\) *Combined service*. Where a veteran who had Commonwealth Army or
guerrilla service and also had other service, wartime or peacetime, in
the Armed Forces of the United States, has disabilities which are
compensable separately on a dollar and a \$0.50 for each dollar
authorized basis, and the disabilities are combined under the authority
contained in 38 U.S.C. 1157, the evaluation for which dollars are
payable will be first considered and the difference between this
evaluation and the combined evaluation will be the basis for computing
the amount payable at the rate of \$0.50 for each dollar authorized.

\[26 FR 1565, Feb. 24, 1961, as amended at 31 FR 14454, Nov. 10, 1966;
60 FR 18355, Apr. 11, 1995; redesignated and revised at 66 FR 66767,
Dec. 27, 2001; amended at 71 FR 8220, Feb. 16, 2006\]

**Supplement *Highlights* references**: 15(3), 49(1), 70(1).

**Cross reference:** Computation of service. See §3.15.

**§3.42 Compensation at the full-dollar rate for certain Filipino
veterans residing in the United States.**

\(a\) *Definitions*. For purposes of this section:

\(1\) *United States* (U.S.) means the states, territories and
possessions of the United States; the District of Columbia, and the
Commonwealth of Puerto Rico.

\(2\) *Residing in the U.S.* means that an individual's principal,
actual dwelling place is in the U.S. and that the individual meets the
residency requirements of paragraph (c)(4) of this section.

\(3\) *Citizen of the U.S.* means any individual who acquires U.S.
citizenship through birth in the territorial U.S., birth abroad as
provided under title 8, United States Code, or through naturalization,
and has not renounced his or her U.S. citizenship, or had such
citizenship cancelled, revoked, or otherwise terminated.

\(4\) *Lawfully admitted for permanent residence* means that an
individual has been lawfully accorded the privilege of residing
permanently in the U.S. as an immigrant by the U.S. Citizenship and
Immigration Services under title 8, United States Code, and still has
this status.

\(b\) *Eligibility requirements*. Compensation and dependency and
indemnity compensation is payable at the full-dollar rate, based on
service described in §3.40(b), (c), or (d), to a veteran or a veteran's
survivor who is residing in the U.S. and is either:

\(1\) A citizen of the U.S., or

\(2\) An alien lawfully admitted for permanent residence in the U.S.

\(c\) *Evidence of eligibility*.

\(1\) A valid original or copy of one of the following documents is
required to prove that the veteran or the veteran's survivor is a
natural born citizen of the U.S.:

> \(i\) A valid U.S. passport;
>
> \(ii\) A birth certificate showing that he or she was born in the
> U.S.; or
>
> \(iii\) A Report of Birth Abroad of a Citizen of the U.S. issued by a
> U.S. consulate abroad.

\(2\) Only verification by the U.S. Citizenship and Immigration Services
to VA that a veteran or a veteran's survivor is a naturalized citizen of
the U.S., or a valid U.S. passport, will be sufficient proof of such
status.

\(3\) Only verification by the U.S. Citizenship and Immigration Services
to VA that a veteran or a veteran's survivor is an alien lawfully
admitted for permanent residence in the U.S. will be sufficient proof of
such status.

\(4\) VA will not pay benefits at the full-dollar rate under this
section unless the evidence establishes that the veteran or survivor is
lawfully residing in the U.S.

\(i\) Such evidence should identify the veteran's or survivor's name and
relevant dates, and may include:

> \(A\) A valid driver's license issued by the state of residence;
>
> \(B\) Employment records, which may consist of pay stubs, W-2 forms,
> and certification of the filing of Federal, State, or local income tax
> returns;
>
> \(C\) Residential leases, rent receipts, utility bills and receipts,
> or other relevant documents showing dates of utility service at a
> leased residence;
>
> \(D\) Hospital or medical records showing medical treatment or
> hospitalization, and showing the name of the medical facility or
> treating physician;
>
> \(E\) Property tax bills and receipts; and
>
> \(F\) School records.

\(ii\) A Post Office box mailing address in the veteran's name does not
constitute evidence showing that the veteran was lawfully residing in
the United States on the date of death.

\(d\) *Continued eligibility*.

\(1\) In order to continue receiving benefits at the full-dollar rate
under this section, a veteran or a veteran's survivor must be physically
present in the U.S. for at least 183 days of each calendar year in which
he or she receives payments at the full-dollar rate, and may not be
absent from the U.S. for more than 60 consecutive days at a time unless
good cause is shown. However, if a veteran or a veteran's survivor
becomes eligible for full-dollar rate benefits for the first time on or
after July 1 of any calendar year, the 183-day rule will not apply
during that calendar year. VA will not consider a veteran or a veteran's
survivor to have been absent from the U.S. if he or she left and
returned to the U.S. on the same date.

\(2\) A veteran or a veteran's survivor receiving benefits at the
full-dollar rate under this section must notify VA within 30 days of
leaving the U.S., or within 30 days of losing either his or her U.S.
citizenship or lawful permanent resident alien status. When a veteran or
a veteran's survivor no longer meets the eligibility requirements of
paragraph (b) of this section, VA will reduce his or her payment to the
rate of \$0.50 for each dollar authorized under the law, effective on
the date determined under §3.505. If such veteran or survivor regains
his or her U.S. citizenship or lawful permanent resident alien status,
VA will restore full-dollar rate benefits, effective the date the
veteran or survivor meets the eligibility requirements in paragraph (b)
of this section.

\(3\) When requested to do so by VA, a veteran or survivor receiving
benefits at the full-dollar rate under this section must verify that he
or she continues to meet the residency and citizenship or permanent
resident alien status requirements of paragraph (b) of this section. VA
will advise the veteran or survivor at the time of the request that the
verification must be furnished within 60 days and that failure to do so
will result in the reduction of benefits. If the veteran or survivor
fails to furnish the evidence within 60 days, VA will reduce his or her
payment to the rate of \$0.50 for each dollar authorized, as provided in
§3.652.

\(4\) A veteran or survivor receiving benefits at the full-dollar rate
under this section must promptly notify VA of any change in his or her
address. If mail from VA to the veteran or survivor is returned to VA by
the U.S. Postal Service, VA will make reasonable efforts to determine
the correct mailing address. If VA is unable to determine the correct
mailing address through reasonable efforts, VA will reduce benefit
payments to the rate of \$0.50 for each dollar authorized under law,
effective on the date determined under §3.505.

\(e\) *Effective date for restored eligibility*. In the case of a
veteran or survivor receiving benefits at the full-dollar rate, if VA
reduces his or her payment to the rate of \$0.50 for each dollar
authorized under the law, VA will resume payments at the full-dollar
rate, if otherwise in order, effective the first day of the month
following the date on which he or she again meets the requirements.
However, such increased payments will be retroactive no more than one
year prior to the date on which VA receives evidence that he or she
again meets the requirements.

\[66 FR 66767, Dec. 27, 2001, as amended at 71 FR 8220, Feb. 16, 2006\]

**Supplement *Highlights* references**: 49(1), 70(1).

**§3.43 Burial benefits at the full-dollar rate for certain Filipino
veterans residing in the United States on the date of death.**

\(a\) *Definitions*. For purposes of this section:

\(1\) *United States* (U.S.) means the states, territories and
possessions of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico.

\(2\) *Residing in the U.S.* means an individual's principal, actual
dwelling place was in the U.S. When death occurs outside the U.S., VA
will consider the deceased individual to have been residing in the U.S.
on the date of death if the individual maintained his or her principal
actual dwelling place in the U.S. until his or her most recent departure
from the U.S., and he or she had been physically absent from the U.S.
less than 61 consecutive days when he or she died.

\(3\) *Citizen of the U.S.* means any individual who acquires U.S.
citizenship through birth in the territorial U.S., birth abroad as
provided under title 8, United States Code, or through naturalization,
and has not renounced his or her U.S. citizenship, or had such
citizenship cancelled, revoked, or otherwise terminated.

\(4\) *Lawfully admitted for permanent residence* means that the
individual was lawfully accorded the privilege of residing permanently
in the U.S. as an immigrant by the U.S. Citizenship and Immigration
Services under title 8, United States Code, and on the date of death,
still had this status.

\(b\) *Eligibility requirements*. VA will pay burial benefits under
chapter 23 of title 38, United States Code, at the full-dollar rate,
based on service described in §3.40(c) or (d), when an individual who
performed such service dies after November 1, 2000, or based on service
described in §3.40(b) when an individual who performed such service dies
after December 15, 2003, and was on the date of death:

\(1\) Residing in the U.S.; and

\(2\) Either:

> \(i\) A citizen of the U.S., or
>
> \(ii\) An alien lawfully admitted for permanent residence in the U.S.;
> and

\(3\) Either:

> \(i\) Receiving compensation under chapter 11 of title 38, United
> States Code; or
>
> \(ii\) Would have satisfied the disability, income and net worth
> requirements of §3.3(a)(3) of this part and would have been eligible
> for pension if the veteran's service had been deemed to be active
> military, naval, or air service.

\(c\) *Evidence of eligibility*.

\(1\) In a claim for full-dollar rate burial payments based on the
deceased veteran having been a natural born citizen of the U.S., a valid
original or copy of one of the following documents is required:

> \(i\) A valid U.S. passport;
>
> \(ii\) A birth certificate showing that he or she was born in the
> U.S.; or
>
> \(iii\) A Report of Birth Abroad of a Citizen of the U.S. issued by a
> U.S. consulate abroad.

\(2\) In a claim based on the deceased veteran having been a naturalized
citizen of the U.S., only verification of that status by the U.S.
Citizenship and Immigration Services to VA, or a valid U.S. passport,
will be sufficient proof for purposes of eligibility for full-dollar
rate benefits.

\(3\) In a claim based on the deceased veteran having been an alien
lawfully admitted for permanent residence in the U.S., only verification
of that status by the U.S. Citizenship and Immigration Services to VA
will be sufficient proof for purposes of eligibility for full-dollar
rate benefits.

\(4\) VA will not pay benefits at the full-dollar rate under this
section unless the evidence establishes that the veteran was lawfully
residing in the U.S. on the date of death.

\(i\) Such evidence should identify the veteran's name and relevant
dates, and may include:

> \(A\) A valid driver's license issued by the state of residence;
>
> \(B\) Employment records, which may consist of pay stubs, W-2 forms,
> and certification of the filing of Federal, State, or local income tax
> returns;
>
> \(C\) Residential leases, rent receipts, utility bills and receipts,
> or other relevant documents showing dates of utility service at a
> leased residence;
>
> \(D\) Hospital or medical records showing medical treatment or
> hospitalization of the veteran or survivor, and showing the name of
> the medical facility or treating physician;
>
> \(E\) Property tax bills and receipts; and
>
> \(F\) School records.

\(ii\) A Post Office box mailing address in the veteran's name does not
constitute evidence showing that the veteran was lawfully residing in
the United States on the date of death.

\[66 FR 66768, Dec. 27, 2001, as amended at 71 FR 8221, Feb. 16, 2006\]

**Supplement *Highlights* references**: 49(1), 70(1).

# Next Section is §3.50

**Effective Dates**

3.400 General 3.400-1

3.401 Veterans 3.401-1

3.402 Surviving spouse 3.402-1

3.403 Children 3.403-1

3.404 Parents 3.404-1

3.405 Filipino veterans and their survivors; benefits at the full-dollar
rate 3.405-1

**§3.400 General.**

Except as otherwise provided, the effective date of an evaluation and
award of pension, compensation or dependency and indemnity compensation
based on an original claim, a claim reopened after final disallowance,
or a claim for increase will be the date of receipt of the claim or the
date entitlement arose, whichever is the later. (Authority: 38 U.S.C.
5110(a))

\(a\) *Unless specifically provided.* On basis of facts found.

\(b\) *Disability benefits*:

\(1\) *Disability pension (§3.3).* An award of disability pension may
not be effective prior to the date entitlement arose.

\(i\) *Claims received prior to October 1, 1984.* Date of receipt of
claim or date on which the veteran became permanently and totally
disabled, if claim is filed within one year from such date, whichever is
to the advantage of the veteran.

\(ii\) *Claims received on or after October 1, 1984.*

\(A\) Except as provided in paragraph (b)(1)(ii)(B) of this section,
date of receipt of claim.

\(B\) If, within one year from the date on which the veteran became
permanently and totally disabled, the veteran files a claim for a
retroactive award and establishes that a physical or mental disability,
which was not the result of the veteran's own willful misconduct, was so
incapacitating that it prevented him or her from filing a disability
pension claim for at least the first 30 days immediately following the
date on which the veteran became permanently and totally disabled, the
disability pension award may be effective from the date of receipt of
claim or the date on which the veteran became permanently and totally
disabled, whichever is to the advantage of the veteran. While rating
board judgment must be applied to the facts and circumstances of each
case, extensive hospitalization will generally qualify as sufficiently
incapacitating to have prevented the filing of a claim. For the purposes
of this subparagraph, the presumptive provisions of §3.342(a) do not
apply.

\(2\) *Disability compensation*:

\(i\) *Direct service connection (§3.4(b)).* Day following separation
from active service or date entitlement arose if claim is received
within 1 year after separation from service; otherwise, date of receipt
of claim, or date entitlement arose, whichever is later. Separation from
service means separation under conditions other than dishonorable from
continuous active service which extended from the date the disability
was incurred or aggravated.

\(ii\) *Presumptive service connection (§§3.307, 3.308, 3.309).* Date
entitlement arose, if claim is received within 1 year after separation
from active duty; otherwise date of receipt of claim, or date
entitlement arose, whichever is later. Where the requirements for
service connection are met during service, the effective date will be
the day following separation from service if there was continuous active
service following the period of service on which the presumption is
based and a claim is received within 1 year after separation from active
duty.

\(c\) *Death benefits*:

\(1\) *Death in service (38 U.S.C. 5110(j), Pub. L. 87-825) (§§3.4(c),
3.5(b)).* First day of the month fixed by the Secretary concerned as the
date of actual or presumed death, if claim is received with 1 year after
the date the initial report of actual death or finding of presumed death
was made; however benefits based on a report of actual death are not
payable for any period for which the claimant has received, or is
entitled to receive an allowance, allotment, or service pay of the
veteran.

\(2\) *Service-connected death after separation from service (38 U.S.C.
5110(d), Pub. L. 87-825) (§§3.4(c), 3.5(b)).* First day of the month in
which the veteran's death occurred if claim is received within 1 year
after the date of death; otherwise, date of receipt of claim.

\(3\) *Nonservice-connected death after separation from service.*

\(i\) For awards based on claims received prior to October 1, 1984,
first day of the month in which the veteran's death occurred if claim is
received within one year after the date of death; otherwise, date of
receipt of claim.

\(ii\) For awards based on claims received on or after October 1, 1984,
first day of the month in which the veteran's death occurred if claim is
received within 45 days after the date of death; otherwise, date of
receipt of claim. (Authority: 38 U.S.C. 5110(d))

\(4\) *Dependency and indemnity compensation*:

*(i) Deaths prior to January 1, 1957 (§3.702).* Date of receipt of
election.

*(ii) Child (38 U.S.C. 5110(e), Pub. L. 87-835).* First day of the month
in which entitlement arose if claim is received within 1 year after the
date of entitlement; otherwise, date of receipt of claim.

*(iii) Deaths on or after May 1, 1957 (in-service waiver cases)
(§§3.5(b)(3) and 3.702).* Date of receipt of election. (See §3.114(a)).

\(d\) \[Removed\]

\(e\) *Apportionment (§§3.450 through 3.461, 3.551).* On original
claims, in accordance with the facts found. On other than original
claims from the first day of the month following the month in which:

**§3.405 Filipino veterans and their survivors; benefits at the
full-dollar rate.**

Public Laws 106-377 and 108-183, which provide disability compensation
and dependency and indemnity compensation at full-dollar rates to
certain Filipino veterans and their survivors, are considered
liberalizing laws. As such, the provisions of 38 CFR 3.114(a) apply when
determining the effective date of an award. If the requirements of
§3.114(a) are not satisfied, then the effective date of an award of
benefits at the full-dollar rate under §3.42 will be determined as
follows:

\(a\) *Initial entitlement to full-dollar rate*. The latest of the
following:

\(1\) Date entitlement arose;

\(2\) Date on which the veteran or survivor first met the residency and
citizenship or permanent resident alien status requirements in §3.42, if
VA receives evidence of this within one year of that date; or

\(3\) Effective date of service connection, provided VA receives
evidence that the veteran or survivor meets the residency and
citizenship or permanent resident alien status requirements in §3.42
within one year of the date of notification of the decision establishing
service connection.

\(b\) *Resumption of full-dollar rate*.

\(1\) Date the veteran or survivor returned to the United States after
an absence of more than 60 consecutive days; or

\(2\) First day of the calendar year following the year in which the
veteran or survivor was absent from the United States for a total of 183
days or more, or the first day after that date that the veteran or
survivor returns to the United States.

\[66 FR 66768, Dec. 27, 2001, as amended at 71 FR 8221, Feb. 16, 2006\]

**Supplement *Highlights* references**: 49(1), 70(1).

*Next Section is §3.450*

Reserved

**Reductions and Discontinuances**

3.500 General 3.500-1

3.501 Veterans 3.501-1

3.502 Surviving spouses 3.502-1

3.503 Children 3.503-1

3.504 Parents; aid and attendance 3.504-1

3.505 Filipino veterans and their survivors; benefits at the full-dollar
rate 3.505-1

**§3.500 General.**

The effective date of a rating which results in the reduction or
discontinuance of an award will be in accordance with the facts found
except as provided in §3.105. The effective date of reduction or
discontinuance of an award of pension, compensation, or dependency and
indemnity compensation for a payee or dependent will be the earliest of
the dates stated in these paragraphs unless otherwise provided. Where an
award is reduced, the reduced rate will be effective the day following
the date of discontinuance of the greater benefit. (Authority: 38 U.S.C.
5112(b))

\(a\) *Except as otherwise provided (38 U.S.C. 5112(a))*. In accordance
with the facts found.

\(b\) *Error; payee's or administrative (38 U.S.C. 5112(b), (9), (10))*.

\(1\) Effective date of award or day preceding act, whichever is later,
but not prior to the date entitlement ceased, on an erroneous award
based on an act of commission or omission by a payee or with the payee's
knowledge.

\(2\) Except as provided in paragraph (r) of this section, and §3.501(e)
and (g), date of last payment on an erroneous award based solely on
administrative error or error in judgment.

\(c\) *Annual income*. See §3.660.

\(d\) *Apportionment (§§3.450 series; §3.556)*.

\(1\) Except as otherwise provided, date of last payment when reason for
apportionment no longer exists.

\(2\) Where pension was apportioned under §3.551(c), day preceding date
of veteran's release from hospital, unless overpayment would result;
date of last payment if necessary to avoid overpayment.

\(e\) *Federal employees' compensation (§3.708)*. The day preceding the
date the award of benefits under the Federal Employees' Compensation Act
became effective. If children on rolls and surviving spouse has primary
title, award to children discontinued same date as surviving spouse's
award. (Authority: 5 U.S.C. 8116)

\(f\) *Contested claims (§3.402(b) and subpart F of part 20 of this
chapter)*. Date of last payment.

\(g\) *Death (38 U.S.C. 5112(a), (b))*:

\(1\) *Payee (includes apportionee)*. Last day of month before death.

\(2\) *Dependent of payee (includes apportionee)*:

\(i\) Death prior to October 1, 1982: last day of the calendar year in
which death occurred.

\(ii\) Death on or after October 1, 1982: last day of the month in which
death occurred, except that section 306 and old-law pension reductions
or terminations will continue to be effective the last day of the
calendar year in which death occurred.

\(3\) *Veteran receiving retirement pay*. Date of death.

\(h\) *Dependency of parent (38 U.S.C 5112; Pub. L. 90-275; §§3.4(a),
(b)(2), 3.250, 3.551(b) and 3.660)*. See §3.660.

\(i\) *Election of Department of Veterans Affairs benefits (§3.700
series)*. Day preceding beginning date of award under other law.

\(j\) *Foreign residence (38 U.S.C. 5308(a))*. See §3.653.

\(k\) *Fraud (38 U.S.C. 6103(a), (d); §§3.669 and 3.901)*. Beginning
date of award or day preceding date of fraudulent act, whichever is
later.

\(l\) *Guardian, marriage or divorce of (§3.856)*. Date of last payment
(pending receipt of information as to change of name).

\(m\) *Incompetency (§3.855)*. Date of last payment.

\(n\) *Marriage (or remarriage) (38 U.S.C. 101(3), 5112 (b))*:

\(1\) *Payee (includes apportionee)*. Last day of month before marriage.

\(2\) *Dependent of payee (includes apportionee)*:

\(i\) Marriage prior to October 1, 1982: last day of the calendar year
in which marriage occurred.

\(ii\) Marriage on or after October 1, 1982: last day of the month in
which marriage occurred, except that section 306 and old-law pension
reductions or terminations will continue to be effective the last day of
the calendar year in which marriage occurred.

\(3\) *Conduct of surviving spouse*. Last day of month before inception
of relationship. (38 U.S.C. 101(3), 5112(b))

\(o\) *Penal institutions*. See §3.666.

\(p\) *Philippines (38 U.S.C. 107(a)(3); §3.8)*. Date of last payment
when recognition of service withdrawn.

**§3.505 Filipino veterans and their survivors; benefits at the
full-dollar rate.**

The effective date of discontinuance of compensation or dependency and
indemnity compensation for a Filipino veteran or his or her survivor
under §3.42 will be the earliest of the dates stated in this section.
Where an award is reduced, the reduced rate will be payable the day
following the date of discontinuance of the greater benefit.

\(a\) If a veteran or survivor receiving benefits at the full-dollar
rate under §3.42 is physically absent from the U.S. for a total of 183
days or more during any calendar year, VA will reduce benefits to the
rate of \$0.50 for each dollar authorized under the law, effective on
the 183rd day of absence from the U.S.

\(b\) If a veteran or survivor receiving benefits at the full-dollar
rate under §3.42 is physically absent from the U.S. for more than 60
consecutive days, VA will reduce benefits to the rate of \$0.50 for each
dollar authorized under the law, effective on the 61st day of the
absence.

\(c\) If a veteran or survivor receiving benefits at the full-dollar
rate under §3.42 loses either U.S. citizenship or status as an alien
lawfully admitted for permanent residence in the U.S., VA will reduce
benefits to the rate of \$0.50 for each dollar authorized under the law,
effective on the day he or she no longer satisfies one of these
criteria.

\(d\) If mail to a veteran or survivor receiving benefits at the
full-dollar rate under §3.42 is returned to VA by the U.S. Postal
Service, VA will make reasonable efforts to determine the correct
mailing address. If VA is unable to determine the veteran's or
survivor's correct address through reasonable efforts, VA will reduce
benefits to the rate of \$0.50 for each dollar authorized under law,
effective the first day of the month that follows the month for which VA
last paid benefits. (Authority: 38 U.S.C. 107)

\[66 FR 66768, Dec. 27, 2001, as amended at 71 FR 8221, Feb. 16, 2006\]

**Supplement *Highlights* references**: 49(1), 70(1).

*Next Section is §3.551*

Reserved

**Subpart B---Burial Benefits**

Authority: 105 Stat. 386, 38 U.S.C. 501(a), 2302--2308,

unless otherwise noted.

3.1600 Payment of burial expenses of deceased veterans 3.1600-1

3.1601 Claims and evidence 3.1601-1

3.1602 Special conditions governing payments 3.1602-1

3.1603 Authority for burial of certain unclaimed bodies 3.1603-1

3.1604 Payments from non-Department of Veterans Affairs sources 3.1604-1

3.1605 Death while traveling under prior authorization or

while hospitalized by the Department of Veterans Affairs 3.1605-1

3.1606 Transportation items 3.1606-1

3.1607 Cost of flags 3.1607-1

3.1608 Nonallowable expenses 3.1608-1

3.1609 Forfeiture 3.1609-1

3.1610 Burial in National cemeteries 3.1610-1

3.1611 Official Department of Veterans Affairs representation at funeral
3.1611-1

3.1612 Monetary allowance in lieu of a Government-furnished

headstone or marker 3.1612-1

**§3.1600 Payment of burial expenses of deceased veterans.**

For the purpose of payment of burial expenses the term "veteran"
includes a person who died during a period deemed to be active military,
naval or air service under §3.6(b)(6). The period of active service upon
which the claim is based must have been terminated by discharge or
release from active service under conditions other than dishonorable.

\(a\) *Service-connected death and burial allowance*. If a veteran dies
as a result of a service-connected disability or disabilities, an amount
not to exceed the amount specified in 38 U.S.C. 2307 (or if entitlement
is under §3.40(b), (c), or (d), an amount computed in accordance with
the provisions of §3.40(b) or (c)) may be paid toward the veteran's
funeral and burial expenses including the cost of transporting the body
to the place of burial. Entitlement to this benefit is subject to the
applicable further provisions of this section and §§3.1601 through
3.1610. Payment of the service-connected death burial allowance is in
lieu of payment of any benefit authorized under paragraph (b), (c) or
(f) of this section. (Authority: 38 U.S.C. 2307)

\(b\) *Nonservice-connected death burial allowance*. If a veteran's
death is not service-connected, an amount not to exceed the amount
specified in 38 U.S.C. 2302 (or if entitlement is under §3.40(b), (c),
or (d), an amount computed in accordance with the provisions of §3.40(b)
or (c)) may be paid toward the veteran's funeral and burial expenses
including the cost of transporting the body to the place of burial.
Entitlement is subject to the following conditions:

\(1\) At the time of death the veteran was in receipt of pension or
compensation (or but for the receipt of military retirement pay would
have been in receipt of compensation); or

\(2\) The veteran has an original or reopened claim for either benefit
pending at the time of the veteran's death, and

\(i\) In the case of an original claim there is sufficient evidence of
record on the date of the veteran's death to have supported an award of
compensation or pension effective prior to the date of the veteran's
death, or

\(ii\) In the case of a reopened claim, there is sufficient prima facie
evidence of record on the date of the veteran's death to indicate that
the deceased would have been entitled to compensation or pension prior
to date of death. If the Department of Veterans Affairs determines that
additional evidence is needed to confirm that the deceased would have
been entitled prior to death, it shall be submitted within 1 year from
date of request to the burial allowance claimant for submission of the
confirming evidence. If the confirming evidence is not received by the
Department of Veterans Affairs within 1 year from date of request, the
burial allowance claim shall be disallowed; or

\(3\) The deceased was a veteran of any war or was discharged or
released from active military, naval, or air service for a disability
incurred or aggravated in line of duty, and the body of the deceased is
being held by a State (or a political subdivision of a State) and the
Secretary determines,

\(i\) That there is no next of kin or other person claiming the body of
the deceased veteran, and

\(ii\) That there are not available sufficient resources in the
veteran's estate to cover burial and funeral expenses; and (Authority:
38 U.S.C. 2302(a))

\(4\) The applicable further provisions of this section and §§3.1601
through 3.1610. (Authority: 38 U.S.C. 501(a), 2302)

\(c\) *Death while properly hospitalized.* If a person dies from
non-service­connected causes while properly hospitalized by VA, there is
payable an allowance not to exceed the amount specified in 38 U.S.C.
2303(a) for the actual cost of the person's funeral and burial, and an
additional amount for transportation of the body to the place of burial.
For burial allowance purposes, the term "hospitalized by VA" means
admission to a VA facility (as described in 38 U.S.C. 1701(3)) for
hospital, nursing home, or domiciliary care under the authority of 38
U.S.C. 1710 or 1711(a); admission (transfer) to a non-VA facility (as
described in 38 U.S.C. 1701(4)) for hospital care under the authority of
38 U.S.C. 1703; admission (transfer) to a nursing home under the
authority of 38 U.S.C. 1720 for nursing home care at the expense of the
United States; or admission (transfer) to a State nursing home for
nursing home care with respect to which payment is authorized under the
authority of 38 U.S.C. 1741. (If the hospitalized person's death is
service-connected, entitlement to the burial allowance and
transportation expenses fall under paragraphs (a) and (g) of this
section instead of this paragraph.) (Authority: 38 U.S.C. 2303(a))

\(d\) *Determinations.* Where a claim for burial allowance would be or
has been disallowed because the service department holds that the
disability was not incurred in line of duty and evidence is submitted
which permits a different finding, the decision of the service
department is not binding and the Department of Veterans Affairs will
determine line of duty. The burden of proof will rest upon the claimant.

\(e\) *Persons not included.* Except as provided in §3.1605(c) burial
allowance is not payable in the following cases:

\(1\) A discharged or rejected draftee or selectee.

\(2\) A member of the National Guard who reported to camp in answer to
the President's call for World War I or World War II service, but who,
when medically examined was not finally accepted for active military
service.

\(3\) An alien who does not come within the purview of §3.7(b).

\(4\) Philippine Scouts enlisted on or after October 6, 1945, under
section 14, Pub. L. 190, 79th Congress.

\(5\) Temporary members of the Coast Guard Reserve.

\(f\) *Plot or interment allowance.* When a veteran dies from
non-serviceconnected causes, an amount not to exceed the amount
specified in 38 U.S.C. 2303(b) (or if the entitlement is under §3.8(c)
or (d), an amount computed in accordance with the provisions of §3.8(c))
may be paid as a plot or interment allowance. The plot or interment
allowance is payable to the person or entity who incurred the expenses.
(For payment to a State or political subdivision thereof, see
§3.1604(c).) Entitlement is subject to the following conditions:

\(1\) The deceased veteran is eligible for the burial allowance under
paragraph (b) or (c) of this section; or

\(2\) The veteran served during a period of war and the conditions set
forth in §3.1604(d)(1)(ii)-(v) (relating to burial in a state veterans'
cemetery) are met; or (Authority: 38 U.S.C. 2303(b)(2))

\(3\) The veteran was discharged from the active military, naval, or air
service for a disability incurred or aggravated in line of duty (or at
time of discharge has such a disability, shown by official service
records, which in medical judgment would have justified a discharge for
disability; the official service department record showing that the
veteran was discharged or released from service for disability incurred
in line of duty will be accepted for determining entitlement to the plot
or interment allowance notwithstanding that the Department of Veterans
Affairs has determined, in connection with a claim for monetary
benefits, that the disability was not incurred in line of duty); and

\(4\) The veteran is not buried in a national cemetery or other cemetery
under the jurisdiction of the United States; and

\(5\) The applicable further provisions of this section and §§3.1601
through 3.1610. (Authority: 38 U.S.C. 2303(b))

\(g\) *Transportation expenses for burial in national cemetery.* Where a
veteran dies as the result of a service-connected disability, or at the
time of death was in receipt of disability compensation (or but for the
receipt of military retired pay or nonservice-connected disability
pension would have been entitled to disability compensation at time of
death ), there is payable, in addition to the burial allowance (either
the amount specified in 38 U.S.C. 2302 or the amount specified in 38
U.S.C. 2307 if the cause of death was service connected), an additional
amount for payment of the cost of transporting the body to the national
cemetery for burial. This amount may not exceed the cost of transporting
the body from the veteran's place of death to the national cemetery
nearest the veteran's last place of residence in which burial space is
available. The amounts payable under this paragraph are subject to the
limitations set forth in §§3.1604 and 3.1606.

\[26 FR 1620, Feb. 24, 1961, as amended at 44 FR 22721, Apr. 17, 1979;
47 FR 11012, Mar. 15, 1982; 48 FR 41162, Sept. 14, 1983; 52 FR 34909,
Sept. 16, 1987; 56 FR 25045, June 3, 1991; 60 FR 18356, Apr. 11, 1995;
62 FR 35423, July 1, 1997; 71 FR 8222, Feb. 16, 2006\]

**Supplement *Highlights* references**: 15(3), 30(1), 70(1).

**Cross references:** Definitions; veterans See §3.1(d). Protection;
burial allowance. See §3.954.