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. 78

Covering period of *Federal Register* issues

through February 3, 2008

Copyright © 2008 Jonathan Publishing

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E-mail: coarms@vba.va.gov

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Copyright © 2008 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. 78**

5 February 2008

Covering the period of Federal Register issues

through February 3, 2008

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. 78**

**February 5, 2008**

*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**

3.807-1 to 3.807-2 3.807-1 to 3.807-2 §3.807

**Be sure to complete the**

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

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

> **HIGHLIGHTS**

**Book B, Supplement No. 78**

**February 5, 2008**

***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 7 January 2008, the VA published a final rule, effective that
same date, to amend VA regulations regarding dependents' educational
assistance in order to incorporate statutory amendments that provide
eligibility for dependents' educational assistance for dependents of
servicepersons who meet certain criteria. Change:

In §3.807, revised paragraph (a)(5).

**§3.807 Dependents' educational assistance; certification.**

For the purposes of dependents' educational assistance under 38 U.S.C.
Chapter 35 (see §21.3020), the child, spouse or surviving spouse of a
veteran or serviceperson will have basic eligibility if the following
conditions are met:

\(a\) *General.* Basic eligibility exists if the veteran:

\(1\) Was discharged from service under conditions other than
dishonorable, or died in service; and

> \(2\) Has a permanent total service-connected disability; or
>
> \(3\) A permanent total service-connected disability was in existence
> at the date of the veteran's death; or
>
> \(4\) Died as a result of a service-connected disability; or (if a
> serviceperson)
>
> \(5\) Is on active duty as a member of the Armed Forces and
>
> \(i\) 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; or
>
> \(ii\) Has been determined by VA to have a total disability permanent
> in nature incurred or aggravated in the line of duty during active
> military, naval, or air service; is hospitalized or receiving
> outpatient medical care, services, or treatment for such disability;
> is likely to be discharged or released from such service for such
> disability; and the pursuit of a course of education by such
> individual's spouse or child for which benefits under 38 U.S.C.
> chapter 35 are sought occurred after December 22, 2006.

\(b\) *Service.* Service-connected disability or death must have been
the result of active military, naval, or air service on or after April
21, 1898. (Pub. L. 89-358) Effective September 30, 1966, educational
assistance for a child (but not for a spouse or surviving spouse) may be
authorized based on service in the Philippine Commonwealth Army or as a
Philippine Scout as defined in §3.8(b), (c), or (d) of this part.
(Authority: 38 U.S.C. 3565)

\(c\) *Service connection.* For purpose of this section, the term
"service-connected disability" encompasses combinations of disabilities
of paired organs or extremities treated as if service-connected under
the provisions of §3.383(a) of this part. The standards and criteria for
determining service connection, either direct or presumptive, are those
applicable to the period of service during which the disability was
incurred or aggravated (38 U.S.C. 3501(a)). Cases where eligibility for
service-connected benefits is established under §3.358, 3.361, or 3.800
are not included.

\(d\) *Relationship*:

\(1\) "Child" means the son or daughter of a veteran who meets the
requirements of §3.57, except as to age and marital status.

\(2\) "Spouse" means a person whose marriage to the veteran meets the
requirements of §3.50(a) of this part.

\(3\) "Surviving spouse" means a person whose marriage to the veteran
meets the requirements of §§3.50(b) or 3.52 of this part.

(Authority: 38 U.S.C. 1160; 3501)

\[29 FR 9537, July 14, 1964, as amended at 31 FR 4347, Mar. 12, 1966; 34
FR 840, Jan. 18, 1969; 38 FR 8658, Apr. 5, 1973; 40 FR 54245, Nov. 21,
1975; 53 FR 46607, Nov. 18, 1988; 59 FR 62585, Dec. 6, 1994; 62 FR
51281, Sept. 30, 1997; 69 FR 46435, Aug. 3, 2004; 73 FR 1076, Jan. 7,
2008\]

**Cross references:** Discontinuance. See §3.503(a)(8). Election;
concurrent benefits. See §3.707. Nonduplication. See §21.3023 of this
chapter.

**Supplement *Highlights* references**: 14(3), 63(1), 78(1).