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. 63

Covering period of *Federal Register* issues

through August 23, 2004

Copyright © 2004 Jonathan Publishing

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Copyright © 2004 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. 63**

25 August 2004

Covering the period of Federal Register issues

through August 23, 2004

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. 63**

**August 25, 2004**

*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-16 B-11 to B-16 Index

**3.152-1 to 3.154-1 3.152-1 to [3.154-2]{.underline} §3.154**

3.350-1 to 3.350-2 3.350-1 to 3.350-2 §3.350

3.357-1 to 3.360-1 3.357-1 to [3.363-2]{.underline} §§3.358,
3.361--3.363

**3.382-1 to 3.385-1 3.382-1 to 3.385-1 §3.383**

3.400-3 to 3.400-4 3.400-3 to 3.400-4 §3.400

3.400-7 to 3.401-1 3.400-7 to 3.401-1 §3.400

**3.708-1 to 3.708-2 3.708-1 to 3.708-2 §3.708**

3.800-1 to 3.800-2 3.800-1 to 3.800-2 §3.800

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. 63**

**August 25, 2004**

***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 3 August 2004, the VA published a final rule, effective 2
September 2004, to amend VA adjudication regulations concerning awards
of compensation or dependency and indemnity compensation for additional
disability or death caused by VA hospital care, medical or surgical
treatment, examination, training and rehabilitation services, or
compensated work therapy program. Under this amendment, benefits are
payable for additional disability or death caused by VA hospital care,
medical or surgical treatment, or examination only if VA fault or "an
event not reasonably foreseeable" proximately caused the disability or
death; benefits also are payable for additional disability or death
proximately caused by VA's provision of training and rehabilitation
services or CWT program. Changes:

• Revised §3.154;

• In §3.358, revised paragraphs (a) and (b)(2);

• Added new §§3.361, 3.362, and 3.363;

• In §3.400, revised the heading of paragraph (i);

• In §3.708, revised paragraph (a)(4);

• In §3.800, added introductory text; and

• In §3.807, revised the last sentence of paragraph (c).

2\. On 9 August 2004, the VA published a final rule, effective
retroactively to 6 December 2002, to amend its adjudication regulations
in order to factor in nonservice-connected hearing loss of one ear when
hearing loss in the other ear is service connected and hearing loss
manifests to a specified degree, thus enabling VA to pay compensation
for such claims as if the combined hearing loss in both ears is service
connected. Change:

• In §3.383, revised paragraph (a)(3).

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.(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; 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; 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

3.814 Monetary allowance under 38 U.S.C. chapter 18 for an individual

suffering from spina bifida whose biological father or mother

is or was a Vietnam veteran 3.814-1

3.815 Monetary allowance under 38 U.S.C. chapter 18 for an individual

with disability from covered birth defects whose biological mother

is or was a Vietnam veteran; identification of covered birth defects
3.815-1

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

condition presumptively associated with herbicide
exposure........................3.816-1

**Incompetents, Guardianship and institutional awards**

3.850 General 3.850-1

3.851 St. Elizabeths Hospital, Washington, D.C. 3.851-1

3.852 Institutional awards 3.852-1

3.853 Incompetents; estate over \$25,000 3.853-1

3.854 Limitation on payments for minor 3.854-1

3.855 Beneficiary rated or reported incompetent 3.855-1

3.856 Change of name of female fiduciary 3.856-1

3.857 Children's benefits to fiduciary of surviving spouse 3.857-1

**Forfeiture**

3.900 General 3.900-1

3.901 Fraud 3.901-1

3.902 Treasonable acts 3.902-1

3.903 Subversive activities 3.903-1

3.904 Effect of forfeiture after veteran's death 3.904-1

3.905 Declaration of forfeiture or remission of forfeiture 3.905-1

**Protection**

3.950 Helpless children; Spanish-American and prior wars 3.950-1

3.951 Preservation of disability ratings 3.951-1

3.952 Protected ratings 3.952-1

3.953 Public Law 85-56 and Public Law 85-857 3.953-1

3.954 Burial allowance 3.954-1

3.955--3.956 \[Reserved\]

3.957 Service connection 3.957-1

3.958 Federal employees' compensation cases 3.958-1

3.959 Tuberculosis 3.959-1

3.960 Section 306 and old-law pension protection 3.960-1

**Accrued**

3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid

upon death of a beneficiary 3.1000-1

3.1001 Hospitalized competent veterans 3.1001-1

3.1002 Political subdivisions of United States 3.1002-1

3.1003 Returned and canceled checks 3.1003-1

3.1004--3.1006 \[Reserved\]

3.1007 Hospitalized incompetent veterans 3.1007-1

3.1008 Accrued benefits payable to foreign beneficiaries 3.1008-1

3.1009 Personal funds of patients 3.1009-1

# Subpart B---Burial Benefits

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

# Subpart C---\[Reserved\]

# Subpart D---Universal Adjudication Rules That Apply to Benefit Claims 

**Governed by Part 3 of This Title**

3.2100 Scope of Applicability 3.2100-1

3.2130 Will VA accept a signature by mark or thumbprint? 3.2130-1

*Section Title index begins on next page*

**§3.152 Claims for death benefits.**

\(a\) A specific claim in the form prescribed by the Secretary (or
jointly with the Secretary of Health and Human Services, as prescribed
by §3.153) must be filed in order for death benefits to be paid to any
individual under the laws administered by VA. (See §3.400(c) concerning
effective dates of awards.) (Authority: 38 U.S.C. 5101(a))

\(b\) (1) A claim by a surviving spouse or child for compensation or
dependency and indemnity compensation will also be considered to be a
claim for death pension and accrued benefits, and a claim by a surviving
spouse or child for death pension will be considered to be a claim for
death compensation or dependency and indemnity compensation and accrued
benefits. (Authority: 38 U.S.C. 5101(b)(1))

\(2\) A claim by a parent for compensation or dependency and indemnity
compensation will also be considered to be a claim for accrued benefits.
(Authority: 38 U.S.C. 5101(b)(2))

\(c\) (1) Where a child's entitlement to dependency and indemnity
compensation arises by reason of termination of a surviving spouse's
right to dependency and indemnity compensation or by reason of attaining
the age of 18 years, a claim will be required. (38 U.S.C. 5110(e).) (See
paragraph (c)(4) of this section.) Where the award to the surviving
spouse is terminated by reason of her or his death, a claim for the
child will be considered a claim for any accrued benefits which may be
payable.

\(2\) A claim filed by a surviving spouse who does not have entitlement
will be accepted as a claim for a child or children in her or his
custody named in the claim.

\(3\) Where a claim of a surviving spouse is disallowed for any reason
whatsoever and where evidence requested in order to determine
entitlement from a child or children named in the surviving spouse's
claim is submitted within 1 year from the date of request, requested
either before or after disallowance of the surviving spouse's claim, an
award for the child or children will be made as though the disallowed
claim had been filed solely on their behalf. Otherwise, payments may not
be made for the child or children for any period prior to the date of
receipt of a new claim.

\(4\) Where payments of pension, compensation or dependency and
indemnity compensation to a surviving spouse have been discontinued
because of remarriage or death, or a child becomes eligible for
dependency and indemnity compensation by reason of attaining the age of
18 years, and any necessary evidence is submitted within 1 year from
date of request, an award for the child or children named in the
surviving spouse's claim will be made on the basis of the surviving
spouse's claim having been converted to a claim on behalf of the child.
Otherwise, payments may not be made for any period prior to the date of
receipt of a new claim. (Authority: 38 U.S.C. 501(a))

\[50 FR 25981, June 24, 1985\]

**Cross references:** State Department as agent of Department of
Veterans Affairs. See §3.108. Change in status of dependents. See
§3.651.

**§3.153 Claims filed with Social Security.**

An application on a form jointly prescribed by the Secretary and the
Secretary of Health, Education, and Welfare filed with the Social
Security Administration on or after January 1, 1957, will be considered
a claim for death benefits, and to have been received in the Department
of Veterans Affairs as of the date of receipt in Social Security
Administration. The receipt of such an application (or copy thereof) by
the Department of Veterans Affairs will not preclude a request for any
necessary evidence. (Authority: 38 U.S.C. 5105)

\[26 FR 1570, Feb. 24, 1961\]

**§3.154 Injury due to hospital treatment, etc.**

VA may accept as a claim for benefits under 38 U.S.C. 1151 and §3.361
any communication in writing indicating an intent to file a claim for
disability compensation or dependency and indemnity compensation under
the laws governing entitlement to veterans' benefits for disability or
death due to VA hospital care, medical or surgical treatment,
examination, training and rehabilitation services, or compensated work
therapy program, whether such communication is contained in a formal
claim for pension, compensation, or dependency and indemnity
compensation or in any other document. (Authority: 38 U.S.C. 1151)

\[27 FR 11887, Dec. 1, 1962, as amended at 69 FR 46432, Aug. 3, 2004\]

**Cross references:** Effective dates. See §3.400(i). Disability or
death due to hospitalization, etc. See §§3.358, 3.361 and 3.800.

**Supplement *Highlight* reference**: 63(1)

Reserved

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

**§3.350 Special monthly compensation ratings.**

The rates of special monthly compensation stated in this section are
those provided under 38 U.S.C. 1114.

\(a\) *Ratings under 38 U.S.C. 1114(k).* Special monthly compensation
under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of
use of one hand, one foot, both buttocks, one or more creative organs,
blindness of one eye having only light perception, deafness of both
ears, having absence of air and bone conduction, complete organic
aphonia with constant inability to communicate by speech or, in the case
of a woman veteran, loss of 25% or more of tissue from a single breast
or both breasts in combination (including loss by mastectomy or partial
mastectomy), or following receipt of radiation treatment of breast
tissue. This special compensation is payable in addition to the basic
rate of compensation otherwise payable on the basis of degree of
disability, provided that the combined rate of compensation does not
exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized
in conjunction with any of the provisions of 38 U.S.C. 1114(a) through
(j) or (s). When there is entitlement under 38 U.S.C. 1114 (l) through
(n) or an intermediate rate under (p) such additional allowance is
payable for each such anatomical loss or loss of use existing in
addition to the requirements for the basic rates, provided the total
does not exceed the monthly rate set forth in 38 U.S.C. 1114(o). The
limitations on the maximum compensation payable under this paragraph are
independent of and do not preclude payment of additional compensation
for dependents under 38 U.S.C. 1115, or the special allowance for aid
and attendance provided by 38 U.S.C. 1114(r).

\(1\) *Creative organ.*

\(i\) Loss of a creative organ will be shown by acquired absence of one
or both testicles (other than undescended testicles) or ovaries or other
creative organ. Loss of use of one testicle will be established when
examination by a board finds that:

\(a\) The diameters of the affected testicle are reduced to one-third of
the corresponding diameters of the paired normal testicle, or

\(b\) The diameters of the affected testicle are reduced to one-half or
less of the corresponding normal testicle and there is alteration of
consistency so that the affected testicle is considerably harder or
softer than the corresponding normal testicle; or

\(c\) If neither of the conditions (a) or (b) is met, when a biopsy,
recommended by a board including a genitourologist and accepted by the
veteran, establishes the absence of spermatozoa.

\(ii\) When loss or loss of use of a creative organ resulted from wounds
or other trauma sustained in service, or resulted from operations in
service for the relief of other conditions, the creative organ becoming
incidentally involved, the benefit may be granted.

\(iii\) Loss or loss of use traceable to an elective operation performed
subsequent to service, will not establish entitlement to the benefit.
If, however the operation after discharge was required for the
correction of a specific injury caused by a preceding operation in
service. it will support authorization of the benefit. When the
existence of disability is established meeting the above requirements
for nonfunctioning testicle due to operation after service, resulting in
loss of use, the benefit may be granted even though the operation is one
of election. An operation is not considered to be one of election where
it is advised on sound medical judgment for the relief of a pathological
condition or to prevent possible future pathological consequences.

\(iv\) Atrophy resulting from mumps followed by orchitis in service is
service connected. Since atrophy is usually perceptible within 1 to 6
months after infection subsides, an examination more than 6 months after
the subsidence of orchitis demonstrating a normal genitourinary system
will be considered in determining rebuttal of service incurrence of
atrophy later demonstrated. Mumps not followed by orchitis in service
will not suffice as the antecedent cause of subsequent atrophy for the
purpose of authorizing the benefit.

\(2\) *Foot and hand.*

\(i\) Loss of use of a hand or a foot will be held to exist when no
effective function remains other than that which would be equally well
served by an amputation stump at the site of election below elbow or
knee with use of a suitable prosthetic appliance. The determination will
be made on the basis of the actual remaining function, whether the acts
of grasping, manipulation, etc., in the case of the hand, or of balance,
propulsion, etc., in the case of the foot, could be accomplished equally
well by an amputation stump with prosthesis; for example:

**§3.357 Civil service preference ratings.**

For the purpose of certifying civil service disability preference only,
a service-connected disability may be assigned an evaluation of "less
than ten percent." Any directly or presumptively service-connected
disease or injury which exhibits some extent of actual impairment may be
held to exist at the level of less than ten percent. For disabilities
incurred in combat, however, no actual impairment is required.

\[26 FR 1590, Feb, 24, 1961, as amended at 30 FR 3881, Mar. 25, 1965; 58
FR 52018, Oct. 6, 1993\]

**Supplement *Highlights* reference**: 9(1)

**§3.358 Compensation for disability or death from hospitalization,
medical or surgical treatment, examinations or vocational rehabilitation
training (§3.800).**

\(a\) *General*. This section applies to claims received by VA before
October 1, 1997. If it is determined that there is additional disability
resulting from a disease or injury or aggravation of an existing disease
or injury suffered as a result of hospitalization, medical or surgical
treatment, examination, or vocational rehabilitation training,
compensation will be payable for such additional disability. For claims
received by VA on or after October 1, 1997, see §3.361.

\(b\) *Additional disability.* In determining that additional disability
exists, the following considerations will govern:

\(1\) The veteran's physical condition immediately prior to the disease
or injury on which the claim for compensation is based will be compared
with the subsequent physical condition resulting from the disease or
injury, each body part involved being considered separately.

\(i\) As applied to examinations, the physical condition prior to the
disease or injury will be the condition at time of beginning the
physical examination as a result of which the disease or injury was
sustained.

\(ii\) As applied to medical or surgical treatment, the physical
condition prior to the disease or injury will be the condition which the
specific medical or surgical treatment was designed to relieve.

\(2\) Compensation will not be payable under this section for the
continuance or natural progress of a disease or injury for which the
hospitalization, medical or surgical treatment, or examination was
furnished, unless VA's failure to exercise reasonable skill and care in
the diagnosis or treatment of the disease or injury caused additional
disability or death that probably would have been prevented by proper
diagnosis or treatment. Compensation will not be payable under this
section for the continuance or natural progress of a disease or injury
for which vocational rehabilitation training was provided.

\(c\) *Cause.* In determining whether such additional disability
resulted from a disease or an injury or an aggravation of an existing
disease or injury suffered as a result of training, hospitalization,
medical or surgical treatment, or examination, the following
considerations will govern:

\(1\) It will be necessary to show that the additional disability is
actually the result of such disease or injury or an aggravation of an
existing disease or injury and not merely coincidental therewith.

\(2\) The mere fact that aggravation occurred will not suffice to make
the additional disability compensable in the absence of proof that it
resulted from disease or injury or an aggravation of an existing disease
or injury suffered as the result of training, hospitalization, medical
or surgical treatment, or examination.

\(3\) Compensation is not payable for the necessary consequences of
medical or surgical treatment or examination properly administered with
the express or implied consent of the veteran, or, in appropriate cases,
the veteran's representative. "Necessary consequences" are those which
are certain to result from, or were intended to result from, the
examination or medical or surgical treatment administered. Consequences
otherwise certain or intended to result from a treatment will not be
considered uncertain or unintended solely because it had not been
determined at the time consent was given whether that treatment would in
fact be administered.

\(4\) When the proximate cause of the injury suffered was the veteran's
willful misconduct or failure to follow instructions, it will bar him
(or her) from receipt of compensation hereunder except in the case of
incompetent veterans.

\(5\) Compensation for disability resulting from the pursuit of
vocational rehabilitation is not payable unless there is established a
direct (proximate) causal connection between the injury or aggravation
of an existing injury and some essential activity or function which is
within the scope of the vocational rehabilitation course, not
necessarily limited to activities or functions specifically designated
by the Department of Veterans Affairs in the individual case, since
ordinarily it is not to be expected that each and every different
function and act of a veteran pursuant to his or her course of training
will be particularly specified in the outline of the course or training
program. For example, a disability resulting from the use of an item of
mechanical or other equipment is within the purview of the statute if
training in its use is implicit within the prescribed program or course
outlined or if its use is implicit in the performance of some task or
operation the trainee must learn to perform, although such use may not
be especially mentioned in the training program. In determining whether
the element of direct or proximate causation is present, it remains
necessary for a distinction to be made between an injury arising out of
an act performed in pursuance of the course of training, that is, a
required "learning activity," and one arising out of an activity which
is incident to, related to or coexistent with the pursuit of the program
of training. For a case to fall within the statute there must have been
sustained an injury which, but for the performance of a "learning
activity" in the prescribed course of training, would not have been
sustained. A meticulous examination into all the circumstances is
required, including a consideration of the time and place of the
incident producing the injury.

\(6\) Nursing home care furnished under section 1720 of title 38, United
States Code is not hospitalization within the meaning of this section.
Such a nursing home is an independent contractor and, accordingly, its
agents and employees are not to be deemed agents and employees of the
Department of Veterans Affairs. If additional disability results from
medical or surgical treatment or examination through negligence or other
wrongful acts or omissions on the part of such a nursing home, its
employees or its agents, entitlement does not exist under this section
unless there was an act or omission on the part of the Department of
Veterans Affairs independently giving rise to such entitlement and such
acts on the part of both proximately caused the additional disability.
(Authority: 38 U.S.C. 1151, 1720)

\[26 FR 1590, Feb. 24, 1961, as amended at 36 FR 7659, Apr. 23, 1971; 39
FR 34531, Sept. 26, 1974; 43 FR 51015, Nov. 2, 1978; 60 FR 14223, Mar.
16, 1995; 61 FR 23788, May 23, 1996; 63 FR 45006, Aug. 24, 1998; 64 FR
1131, Jan. 8, 1999; 69 FR 46433, Aug. 3, 2004\]

**Supplement *Highlights* references**: 15(2), 23(1), 33(1), 36(1),
63(1).

§3.359 Determination of service connection for former members of the
Armed Forces of Czechoslovakia or Poland.

Rating boards will determine whether or not the condition for which
treatment is claimed by former members of the Armed Forces of
Czechoslovakia or Poland under 38 U.S.C. 109(c) is service connected.
This determination will be made using the same criteria that applies to
determinations of service connection based on service in the Armed
Forces of the United States.

\[43 FR 4424, Feb. 2, 1978\]

**§3.360 Service-connected health-care eligibility of certain persons**

**administratively discharged under other than honorable condition.**

\(a\) *General.* The health-care and related benefits authorized by
chapter 17 of title 38, United States Code shall be provided to certain
former service persons with administrative discharges under other than
honorable conditions for any disability incurred or aggravated during
active military, naval, or air service in line of duty.

\(b\) *Discharge categorization.* With certain exceptions such benefits
shall be furnished for any disability incurred or aggravated during a
period of service terminated by a discharge under other than honorable
conditions. Specifically, they may not be furnished for any disability
incurred or aggravated during a period of service terminated by a bad
conduct discharge or when one of the bars listed in §3.12(c) applies.

\(c\) *Eligibility criteria.* In making determinations of health-care
eligibility the same criteria will be used as is now applicable to
determinations of service incurrence and in line of duty when there is
no character of discharge bar.

\[43 FR 15154, Apr. 11, 1978\]

**§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.**

\(a\) *Claims subject to this section*.

\(1\) *General*. Except as provided in paragraph (2), this section
applies to claims received by VA on or after October 1, 1997. This
includes original claims and claims to reopen or otherwise readjudicate
a previous claim for benefits under 38 U.S.C. 1151 or its predecessors.
The effective date of benefits is subject to the provisions of
§3.400(i). For claims received by VA before October 1, 1997, see §3.358.

\(2\) *Compensated Work Therapy*. With respect to claims alleging
disability or death due to compensated work therapy, this section
applies to claims that were pending before VA on November 1, 2000, or
that were received by VA after that date. The effective date of benefits
is subject to the provisions of §§3.114(a) and 3.400(i), and shall not
be earlier than November 1, 2000.

\(b\) *Determining whether a veteran has an additional disability*. To
determine whether a veteran has an additional disability, VA compares
the veteran's condition immediately before the beginning of the hospital
care, medical or surgical treatment, examination, training and
rehabilitation services, or compensated work therapy (CWT) program upon
which the claim is based to the veteran's condition after such care,
treatment, examination, services, or program has stopped. VA considers
each involved body part or system separately.

\(c\) *Establishing the cause of additional disability or death*. Claims
based on additional disability or death due to hospital care, medical or
surgical treatment, or examination must meet the causation requirements
of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims
based on additional disability or death due to training and
rehabilitation services or compensated work therapy program must meet
the causation requirements of paragraph (d)(3) of this section.

\(1\) *Actual causation required*. To establish causation, the evidence
must show that the hospital care, medical or surgical treatment, or
examination resulted in the veteran's additional disability or death.
Merely showing that a veteran received care, treatment, or examination
and that the veteran has an additional disability or died does not
establish cause.

\(2\) *Continuance or natural progress of a disease or injury*. Hospital
care, medical or surgical treatment, or examination cannot cause the
continuance or natural progress of a disease or injury for which the
care, treatment, or examination was furnished unless VA's failure to
timely diagnose and properly treat the disease or injury proximately
caused the continuance or natural progress. The provision of training
and rehabilitation services or CWT program cannot cause the continuance
or natural progress of a disease or injury for which the services were
provided.

\(3\) *Veteran's failure to follow medical instructions*. Additional
disability or death caused by a veteran's failure to follow properly
given medical instructions is not caused by hospital care, medical or
surgical treatment, or examination.

\(d\) *Establishing the proximate cause of additional disability or
death*. The proximate cause of disability or death is the action or
event that directly caused the disability or death, as distinguished
from a remote contributing cause.

\(1\) *Care, treatment, or examination*. To establish that carelessness,
negligence, lack of proper skill, error in judgment, or similar instance
of fault on VA's part in furnishing hospital care, medical or surgical
treatment, or examination proximately caused a veteran's additional
disability or death, it must be shown that the hospital care, medical or
surgical treatment, or examination caused the veteran's additional
disability or death (as explained in paragraph (c) of this section); and

\(i\) VA failed to exercise the degree of care that would be expected of
a reasonable health care provider; or

\(ii\) VA furnished the hospital care, medical or surgical treatment, or
examination without the veteran's or, in appropriate cases, the
veteran's representative's informed consent. To determine whether there
was informed consent, VA will consider whether the health care providers
substantially complied with the requirements of §17.32 of this chapter.
Minor deviations from the requirements of §17.32 of this chapter that
are immaterial under the circumstances of a case will not defeat a
finding of informed consent. Consent may be express (i.e., given orally
or in writing) or implied under the circumstances specified in §17.32(b)
of this chapter, as in emergency situations.

\(2\) *Events not reasonably foreseeable*. Whether the proximate cause
of a veteran's additional disability or death was an event not
reasonably foreseeable is in each claim to be determined based on what a
reasonable health care provider would have foreseen. The event need not
be completely unforeseeable or unimaginable but must be one that a
reasonable health care provider would not have considered to be an
ordinary risk of the treatment provided. In determining whether an event
was reasonably foreseeable, VA will consider whether the risk of that
event was the type of risk that a reasonable health care provider would
have disclosed in connection with the informed consent procedures of
§17.32 of this chapter.

\(3\) *Training and rehabilitation services or compensated work therapy
program*. To establish that the provision of training and rehabilitation
services or a CWT program proximately caused a veteran's additional
disability or death, it must be shown that the veteran's participation
in an essential activity or function of the training, services, or CWT
program provided or authorized by VA proximately caused the disability
or death. The veteran must have been participating in such training,
services, or CWT program provided or authorized by VA as part of an
approved rehabilitation program under 38 U.S.C. chapter 31 or as part of
a CWT program under 38 U.S.C. 1718. It need not be shown that VA
approved that specific activity or function, as long as the activity or
function is generally accepted as being a necessary component of the
training, services, or CWT program that VA provided or authorized.

\(e\) *Department employees and facilities*.

\(1\) *A Department employee is an individual*:

> \(i\) Who is appointed by the Department in the civil service under
> title 38, United States Code, or title 5, United States Code, as an
> employee as defined in 5 U.S.C. 2105;
>
> \(ii\) Who is engaged in furnishing hospital care, medical or surgical
> treatment, or examinations under authority of law; and
>
> \(iii\) Whose day-to-day activities are subject to supervision by the
> Secretary of Veterans Affairs.

\(2\) *A Department facility* is a facility over which the Secretary of
Veterans Affairs has direct jurisdiction.

\(f\) *Activities that are not hospital care, medical or surgical
treatment, or examination furnished by a Department employee or in a
Department facility*. The following are not hospital care, medical or
surgical treatment, or examination furnished by a Department employee or
in a Department facility within the meaning of 38 U.S.C. 1151(a):

> \(1\) Hospital care or medical services furnished under a contract
> made under 38 U.S.C. 1703.
>
> \(2\) Nursing home care furnished under 38 U.S.C. 1720.
>
> \(3\) Hospital care or medical services, including examination,
> provided under 38 U.S.C. 8153 in a facility over which the Secretary
> does not have direct jurisdiction.

\(g\) *Benefits payable under 38 U.S.C. 1151 for a veteran's death*.

\(1\) *Death before January 1, 1957*. The benefit payable under 38
U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring
before January 1, 1957, is death compensation. See §§3.5(b)(2) and 3.702
for the right to elect dependency and indemnity compensation.

\(2\) *Death after December 31, 1956*. The benefit payable under 38
U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring
after December 31, 1956, is dependency and indemnity compensation.
(Authority: 38 U.S.C. 1151)

\[69 FR 46433, Aug. 3, 2004\]

**Supplement *Highlights* reference**: 63(1).

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

\(a\) *Claims subject to this section*. This section applies to claims
received by VA on or after October 1, 1997. This includes original
claims and claims to reopen or otherwise readjudicate a previous claim
for benefits under 38 U.S.C. 1151 or its predecessors.

\(b\) *Offset of veterans' awards of compensation*. If a veteran's
disability is the basis of a judgment under 28 U.S.C. 1346(b) awarded,
or a settlement or compromise under 28 U.S.C. 2672 or 2677 entered, on
or after December 1, 1962, the amount to be offset under 38 U.S.C.
1151(b) from any compensation awarded under 38 U.S.C. 1151(a) is the
entire amount of the veteran's share of the judgment, settlement, or
compromise, including the veteran's proportional share of attorney fees.

\(c\) *Offset of survivors' awards of dependency and indemnity
compensation*. If a veteran's death is the basis of a judgment under 28
U.S.C. 1346(b) awarded, or a settlement or compromise under 28 U.S.C.
2672 or 2677 entered, on or after December 1, 1962, the amount to be
offset under 38 U.S.C. 1151(b) from any dependency and indemnity
compensation awarded under 38 U.S.C. 1151(a) to a survivor is only the
amount of the judgment, settlement, or compromise representing damages
for the veteran's death the survivor receives in an individual capacity
or as distribution from the decedent veteran's estate of sums included
in the judgment, settlement, or compromise to compensate for harm
suffered by the survivor, plus the survivor's proportional share of
attorney fees.

\(d\) *Offset of structured settlements*. This paragraph applies if a
veteran's disability or death is the basis of a structured settlement or
structured compromise under 28 U.S.C. 2672 or 2677 entered on or after
December 1, 1962.

\(1\) *The amount to be offset*. The amount to be offset under 38 U.S.C.
1151(b) from benefits awarded under 38 U.S.C. 1151(a) is the veteran's
or survivor's proportional share of the cost to the United States of the
settlement or compromise, including the veteran's or survivor's
proportional share of attorney fees.

\(2\) *When the offset begins*. The offset of benefits awarded under 38
U.S.C. 1151(a) begins the first month after the structured settlement or
structured compromise has become final that such benefits would
otherwise be paid. (Authority: 38 U.S.C. 1151)

\[69 FR 46433, Aug. 3, 2004\]

**Supplement *Highlights* reference**: 63(1).

**§3.363 Bar to benefits under 38 U.S.C. 1151.**

\(a\) *Claims subject to this section*. This section applies to claims
received by VA on or after October 1, 1997. This includes original
claims and claims to reopen or otherwise readjudicate a previous claim
for benefits under 38 U.S.C. 1151 or its predecessors.

\(b\) *Administrative award, compromises, or settlements, or judgments
that bar benefits under 38 U.S.C. 1151*. If a veteran's disability or
death was the basis of an administrative award under 28 U.S.C. 1346(b)
made, or a settlement or compromise under 28 U.S.C. 2672 or 2677
finalized, before December 1, 1962, VA may not award benefits under 38
U.S.C. 1151 for any period after such award, settlement, or compromise
was made or became final. If a veteran's disability or death was the
basis of a judgment that became final before December 1, 1962, VA may
award benefits under 38 U.S.C. 1151 for the disability or death unless
the terms of the judgment provide otherwise. (Authority: 38 U.S.C. 1151)

\[69 FR 46433, Aug. 3, 2004\]

**Supplement *Highlights* reference**: 63(1).

# Next section is §3.370 

Reserved

**§3.382** \[removed and reserved\]

\[26 FR 1592, Feb. 24, 1961, as amended at 44 FR 22720, Apr. 17, 1979;
removed and reserved at 64 FR 30393, June 8, 1999\]

**Supplement Highlights reference: 38(2)**

**§3.383 Special consideration for paired organs and extremities.**

\(a\) *Entitlement criteria.* Compensation is payable for the
combinations of service-connected and nonservice-connected disabilities
specified in paragraphs (a)(1) through (a)(5) of this section as if both
disabilities were service-connected, provided the nonservice-connected
disability is not the result of the veteran's own willful misconduct.

\(1\) Blindness in one eye as a result of service-connected disability
and blindness in the other eye as a result of nonservice-connected
disability.

\(2\) Loss or loss of use of one kidney as a result of service-connected
disability and involvement of the other kidney as a result of
nonservice-connected disability.

\(3\) Hearing impairment in one ear compensable to a degree of 10
percent or more as a result of service-connected disability and hearing
impairment as a result of nonservice-connected disability that meets the
provisions of §3.385 in the other ear.

\(4\) Loss or loss of use of one hand or one foot as a result of
service-connected disability and loss or loss of use of the other hand
or foot as a result of nonservice-connected disability.

\(5\) Permanent service-connected disability of one lung, rated 50
percent or more disabling, in combination with a nonservice-connected
disability of the other lung.

\(b\) *Effect of judgment or settlement.*

\(1\) If a veteran receives any money or property of value pursuant to
an award in a judicial proceeding based upon, or a settlement or
compromise of, any cause of action for damages for the
nonservice-connected disability which established entitlement under this
section, the increased compensation payable by reason of this section,
shall not be paid for any month following the month in which any such
money or property is received until such time as the total amount of
such increased compensation that would otherwise have been payable
equals the total of the amount of any such money received and the fair
market value of any such property received. The provisions of this
paragraph do not apply, however, to any portion of such increased
compensation payable for any period preceding the end of the month in
which such money or property of value was received.

\(2\) With respect to the disability combinations specified in
paragraphs (a)(1), (a)(2), (a)(3) and (a)(5) of this section, the
provisions of this paragraph apply only to awards of increased
compensation made on or after October 28, 1986.

\(c\) *Social security and workers' compensation.* Benefits received
under social security or workers' compensation are not subject to
recoupment under paragraph (b) of this section even though such benefits
may have been awarded pursuant to a judicial proceeding.

\(d\) *Veteran's duty to report.* Any person entitled to increased
compensation under this section shall promptly report to VA the receipt
of any money or property received pursuant to a judicial proceeding
based upon, or a settlement or compromise of, any cause of action or
other right of recovery for damages for the nonservice-connected loss or
loss of use of the impaired extremity upon which entitlement under this
section is based. The amount to be reported is the total of the amount
of money received and the fair market value of property received.
Expenses incident to recovery, such as attorneys' fees, may not be
deducted from the amount to be reported. (Authority 38 U.S.C. 501(a),
1160(a)(3))

Cross-References: §3.385 Disability due to impaired hearing; §4.85
Evaluation of hearing impairment.

\[53 FR 23236, June 21, 1988, as amended at 69 FR 48149, Aug. 9, 2004\]

**Supplement *Highlights* reference**: 63(2)

**§3.384 \[Reserved\]**

**§3.385 Disability due to impaired hearing.**

For the purposes of applying the laws administered by VA, impaired
hearing will be considered to be a disability when the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is
40 decibels or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using the
Maryland CNC Test are less than 94 percent.

\[55 FR 12349, Apr. 3, 1990, as amended at 59 FR 60560, Nov. 25, 1994\]

**Supplement *Highlights* reference**: 14(1)

## Next Section is §3.400

\(1\) Claim is received for apportionment of a veteran's award, except
that where payments to him (her) have been interrupted, apportionment
will be effective the day following date of last payment if a claim for
apportionment is received within 1 year after that date;

\(2\) Notice is received that a child included in the surviving spouse's
award is not in the surviving spouse's custody, except that where
payments to the surviving spouse have been interrupted, apportionment
will be effective the day following date of last payment if such notice
is received within 1 year after that date.

\(f\) *Federal employees' compensation cases (§3.708).* Date authorized
by applicable law, subject to any payments made by the Office of
Workers' Compensation Programs under the Federal Employees' Compensation
Act over the same period of time.

\(g\) *Correction of military records (38 U.S.C. 5110(i); Pub. L.
87-825).* Where entitlement is established because of the correction,
change or modification of a military record, or of a discharge or
dismissal, by a Board established under 10 U.S.C. 1552 or 1553, or
because of other corrective action by competent military naval, or air
authority, the award will be effective from the latest of these dates:

\(1\) Date application for change, correction, or modification was filed
with the service department, in either an original or a disallowed
claim;

\(2\) Date of receipt of claim if claim was disallowed; or

\(3\) One year prior to date of reopening of disallowed claim.

\(h\) *Difference of opinion (§3.105).*

\(1\) As to decisions not final prior to receipt of an application for
reconsideration or to reopen, or prior to reconsideration on Department
of Veterans Affairs initiative, the date from which benefits would have
been payable if the former decision had been favorable.

\(2\) As to decisions which have become final (by appellate decision or
failure to timely initiate and perfect an appeal) prior to receipt of an
application for reconsideration or to reopen, the date of receipt of
such application or the date entitlement arose, whichever is later.

\(3\) As to decisions which have become final (by appellate decision or
failure to timely initiate and perfect an appeal) and reconsideration is
undertaken solely on Department of Veterans Affairs initiative, the date
of Central Office approval authorizing a favorable decision or the date
of the favorable Board of Veterans Appeals decision.

\(4\) Where the initial determination for the purpose of death benefits
is favorable, the commencing date will be determined without regard to
the fact that the action may reverse, on a difference of opinion, an
unfavorable decision for disability purposes by an adjudicative agency
other than the Board of Veterans Appeals, which was in effect at the
date of the veteran's death.

\(i\) *Disability or death due to hospitalization, etc. (38 U.S.C.
5110(c), (d); Public Law 87-825; §§3.358, 3.361, and 3.800.)*:

\(1\) *Disability.* Date injury or aggravation was suffered if claim is
received within 1 year after that date; otherwise, date of receipt of
claim.

\(2\) *Death.* First day of month in which the veteran's death occurred
if a claim is received within 1 year following the date of death;
otherwise, date of receipt of claim.

\(j\) *Election of Department of Veterans Affairs benefits (§3.700
series).*

\(1\) Unless otherwise provided, the date of receipt of election,
subject to prior payments.

\(2\) July 1, 1960, as to pension payable under Pub. L. 86-211, where
pension is payable for June 30, 1960, under the law in effect on that
date, including an award approved after that date, if the election is
filed within (generally) 120 days from date of notice of the award. The
award will be subject to prior payments over the same period of time.

\(3\) January 1, 1965, as to pension payable under Pub. L. 86-211 (73
Stat. 432) as amended by Pub. L. 88-664 if there was basic eligibility
for pension on June 30, 1960, under the law in effect on that date and
an election if filed prior to May 1, 1965.

\(4\) January 1, 1965, as to pension payable under Pub. L. 86-211 (73
Stat. 432) as amended by Pub. L. 88-664 if there was basic eligibility
on that date for pension on the basis of service in the Indian wars or
Spanish-American War and an election is filed prior to May 1, 1965.

\(5\) January 1, 1969, as to pension payable under Pub. L. 86-211 (73
Stat. 432), as amended by Pub. L. 90-275 (82 Stat. 64), if there was
basic eligibility for pension on June 30, 1960, under the law in effect
on that date and an election is filed prior to May 1, 1969.

\(6\) August 1, 1972, as to pension payable under Pub. L. 86-211 (73
Stat. 432) as amended by Pub. L. 92-328 (86 Stat. 393) if there was
basic eligibility on that date based on death of a veteran of the
Spanish-American War and an election is filed prior to December 1, 1972.

\(k\) *Error (§3.105).* Date from which benefits would have been payable
if the corrected decision had been made on the date of the reversed
decision.

\(l\) *Foreign residence.* (See §3.653).

\(m\) *Forfeiture (§§3.901, 3.902).* Day following date of last payment
on award to payee who forfeited.

\(n\) *Guardian.* Day following date of last payment to prior payee or
fiduciary.

\(1\) *Original claim*: Date of receipt of claim or date entitlement
arose, whichever is later, or as otherwise provided under this section
(e.g., paragraph (b)(1) of this section) except that no benefits shall
be awarded for any period prior to November 23, 1977.

\(2\) *Reopened claim*: Latest of the following dates:

\(i\) November 23, 1977.

\(ii\) Date entitlement arose.

\(iii\) One year prior to date of receipt of reopened claim.

\[26 FR 1593, Feb. 24, 1961; 56 FR 25044, June 3, 1991; 57 FR 10426,
Mar. 26, 1992; 58 FR 32443, June 10, 1993; 60 FR 18356, Apr. 11, 1995;
60 FR 5286, Oct. 11, 1995; 61 FR 67950, Dec. 26, 1996; 62 FR 5529, Feb.
6, 1997; 68 FR 34542, June 10, 2003; 69 FR 46434, Aug. 3, 2004\]

**Supplement *Highlights* references:** 8(1), 15(3), 18(2), 25(1),
27(2), 57(1), 63(1).

**Editorial note:** For other *Federal Register* citations affecting
§3.400, see the List of CFR Sections Affected in the Finding Aids
section of Title 38 of the *Code of Federal Regulations*.

**§3.401 Veterans.**

Awards of pension or compensation payable to or for a veteran will be
effective as follows:

\(a\) *Aid and attendance and housebound benefits.*

\(1\) Except as provided in §3.400(o)(2), the date of receipt of claim
or date entitlement arose, whichever is later. However, when an award of
pension or compensation based on an original or reopened claim is
effective for a period prior to the date of receipt of the claim, any
additional pension or compensation payable by reason of need for aid and
attendance or housebound status shall also be awarded for any part of
the award's retroactive period for which entitlement to the additional
benefit is established. (Authority: 38 U.S.C. 501(a); 5110(b)(1), (3))

\(2\) Date of departure from hospital, institution, or domiciliary.
(Authority: 38 U.S.C. 501(a))

\(3\) Spouse, additional compensation for aid and attendance: Date of
receipt of claim or date entitlement arose, whichever is later. However,
when an award of disability compensation based on an original or
reopened claim is effective for a period prior to date of receipt of the
claim additional disability compensation payable to a veteran by reason
of the veteran's spouse's need for aid and attendance shall also be
awarded for any part of the award's retroactive period for which the
spouse's entitlement to aid and attendance is established. (Authority:
38 U.S.C. 501(a); 5110(b)(1), (2))

\(b\) *Dependent, additional compensation or pension for.* Latest of the
following dates:

\(1\) Date of claim. This term means the following, listed in their
order of applicability:

\(i\) Date of veteran's marriage, or birth of his or her child, or,
adoption of a child, if the evidence of the event is received within 1
year of the event otherwise.

\(ii\) Date notice is received of the dependent's existence, if evidence
is received within 1 year of the Department of Veterans Affairs request.

\(2\) Date dependency arises.

\(3\) Effective date of the qualifying disability rating provided
evidence of dependency is received within 1 year of notification of such
rating action. (Authority: 38 U.S.C. 5110(f))

\(4\) Date of commencement of veteran's award. (Other increases, see
§3.400(o). For school attendance see §3.667.) (Authority: 38 U.S.C. 5110
(f), (n))

\(c\) *Divorce of veteran and spouse*. See §3.501(d).

**§3.708 Federal Employees' Compensation.**

\(a\) *Military service*:

\(1\) *Initial election.* Where a person is entitled to compensation
from the Office of Workers' Compensation programs, under the Federal
Employees' Compensation Act (FECA) based upon disability or death due to
service in the Armed Forces and is also entitled based upon service in
the Armed Forces to pension, compensation or dependency and indemnity
compensation under the laws administered by the Department of Veterans
Affairs, the claimant will elect which benefit he or she will receive.
Pension compensation, or dependency and indemnity compensation may not
be paid in such instances by the Department of Veterans Affairs
concurrently with compensation from the Office of Workers' Compensation
programs. Benefits are not payable by the Office of Workers'
Compensation programs for disability or death incurred on or after
January 1, 1957, based on military service.

\(2\) *Right* of *reelection.* Persons receiving compensation from the
Office of Workers' Compensation programs based on death due to military
service may elect to receive dependency and indemnity compensation at
any time. Once payment of dependency and indemnity compensation has been
granted, all further right to FECA benefits is extinguished and only
dependency and indemnity compensation is payable thereafter.

\(3\) *Rights* of *children.* Where primary title is vested in the
surviving spouse, the claimant's election controls the rights of any of
the veteran's children, regardless of whether they are in the claimant's
custody and regardless of the fact that such children may not be
eligible to receive benefits under laws administered by the Office of
Workers' Compensation programs. A child who is eligible for dependency
and indemnity compensation or other benefits independent of the
surviving spouse's entitlement may receive such benefits concurrently
with payment of FECA benefits to the surviving spouse.

\(4\) *Entitlement based on 38 U.S.C. 1151.* The provisions of this
paragraph are applicable also in those cases in which disability or
death occurs as a result of having submitted to an examination, medical
or surgical treatment, hospitalization or hospital care, training, or
compensated work therapy program. See §§3.358 and 3.361.

\(b\) *Civilian employment*:

\(1\) *Same disability or death.* Where a person is entitled to
compensation from the Office of Workers' Compensation programs based
upon civilian employment and is also entitled to compensation or
dependency and indemnity compensation under laws administered by the
Department of Veterans Affairs for the same disability or death, the
claimant will elect which benefit he or she will receive. On or after
September 13, 1960, an award cannot be approved for payment of
compensation or dependency and indemnity compensation concurrently with
compensation from the Office of Workers' Compensation programs in such
instances and an election to receive benefits from either agency is
final. See §3.958. There is no right of reelection. (5 U.S.C. 8116(b)) A
child who is eligible for dependency and indemnity compensation or other
benefits independent of the surviving spouse's entitlement may receive
such benefits concurrently with payment of FECA benefits to the
surviving spouse.

\(2\) *Not the same disability or death.* There is no prohibition
against payment of benefits under the Federal Employees' Compensation
Act concurrently with other benefits administered by the Department of
Veterans Affairs when such benefits are not based on the same disability
or death.

\[39 FR 18099, May 23, 1974, as amended at 41 FR 29120, July 15, 1976;
44 FR 45943, Aug. 6, 1979; 69 FR 46435, Aug. 3, 2004\]

**Supplement *Highlights* reference**: 63(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 1312. 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 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

3.814 Monetary allowance under 38 U.S.C. chapter 18 for an individual
suffering

from spina bifida whose biological father or mother is or was a

Vietnam veteran 3.814-1

3.815 Monetary allowance under 38 U.S.C. chapter 18 for an individual
with

disability from covered birth defects whose biological mother is or was
a

Vietnam veteran; identification of covered birth defects 3.815-1

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

condition presumptively associated with herbicide exposure 3.816-1

**§3.800 Disability or death due to hospitalization, etc.**

This section applies to claims received by VA before October 1, 1997.
For claims received by VA on or after October 1, 1997, see §§3.362 and
3.363.

\(a\) Where disease, injury, death or the aggravation of an existing
disease or injury occurs as a result of having submitted to an
examination, medical or surgical treatment, hospitalization or the
pursuit of a course of vocational rehabilitation under any law
administered by the Department of Veterans Affairs and not the result of
his (or her) own willful misconduct, disability or death compensation,
or dependency and indemnity compensation will be awarded for such
disease, injury, aggravation, or death as if such condition were service
connected. The commencing date of benefits is subject to the provisions
of §3.400(i). (Authority: 38 U.S.C. 1151)

\(1\) Benefits under paragraph (a) of this section will be in lieu of
any benefits the veteran may be entitled to receive under the Federal
Employees' Compensation Act inasmuch as concurrent payments are
prohibited. (See §3.708.)

\(2\) Where any person is awarded a judgment on or after December 1,
1962, against the United States in a civil action brought pursuant to 28
U.S.C. 1346(b), or enters into a settlement or compromise on or after
December 1, 1962, under 28 U.S.C. 2672 or 2677, by reason of a
disability, aggravation or death within the purview of this section, no
compensation or dependency and indemnity compensation shall be paid to
such person for any month beginning after the date such judgment,
settlement, or compromise on account of such disability, aggravation, or
death becomes final until the total amount of benefits which would be
paid except for this provision equals the total amount included in such
judgment, settlement, or compromise. The provisions of this paragraph do
not apply, however, to any portion of such compensation or dependency
and indemnity compensation payable for any period preceding the end of
the month in which such judgment, settlement or compromise becomes
final. (Authority: 38 U.S.C. 501(a))

\(3\) If an administrative award was made or a settlement or compromise
became final before December 1, 1962, compensation or dependency and
indemnity compensation may not be authorized for any period after such
award settlement, or compromise whether before or after December 1,
1962. There is no bar to payment of compensation or dependency and
indemnity compensation and no set-off because of a judgment which became
final before December 1, 1962, unless specified in the terms of the
judgment.

\(b\) (1) If death occurred prior to January 1, 1957, the benefit
payable will be death compensation. See §§3.5(b)(2) and 3.702 as to
right of election to dependency and indemnity compensation.

\(2\) If death occurs on or after January 1, 1957, the benefit payable
will be dependency and indemnity compensation.

\[26 FR 1604, Feb. 24, 1961, as amended at 27 FR 11892, Dec. 1, 1962; 29
FR 16252, Dec. 4, 1964; 39 FR 34532, Sept. 26, 1974; 53 FR 23237, June
21, 1988; 63 FR 45007, Aug. 24, 1998; 64 FR 1132, Jan. 8, 1999; 69 FR
46435, Aug. 3, 2004\]

**Cross references:** Claims; injury due to hospital treatment, etc. See
§3.154. Effective dates; disability or death due to hospitalization,
etc. See §3.400(i).

**Supplement *Highlights* references**: 33(1), 36(1), 63(1).

**§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 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.

\(b\) *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)

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

**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).