Custom Federal Regulations Service™

**This is supplemental material**

**for Book G of your set of**

**Federal Regulations**

Title 38, Part 21

*Vocational Rehabilitation and Education*

**Veterans Benefits Administration**

Supplement No. 69

Covering period of *Federal Register* issues

through January 23, 2006

Copyright © 2006 Jonathan Publishing

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> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book G***

**Code of Federal Regulations**

**Title 38, Part 21**

***Vocational Rehabilitation and Education***

**Veterans Benefits Administration**

**Supplement No. 69**

25 January 2006

Covering the period of Federal Register issues

through 23 January 2006

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

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> G-8) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page G-2.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page G-8)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

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

> **FILING INSTRUCTIONS**

**Book G, Supplement No. 69**

**January 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**

21.1031-1 to 21.1032-3 21.1031-1 to 21.1032-3 §21.1032

**21.7530-2 to 21.7551-2 21.7530-2 to 21.7551-2 §§21.7540, 21.7550,**

**& 21.7551**

**Be sure to complete the**

***Supplement Filing Record* (page G-8)**

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

> **HIGHLIGHTS**

**Book G, Supplement No. 69**

**January 25, 2006**

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

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

**Modifications in this supplement include the following:**

1\. On 10 January 2006, the VA published a final rule, effective that
same date to implement provisions in the Veterans Benefits and Health
Care Improvement Act of 2000 and the Bob Stump National Defense
Authorization Act for Fiscal Year 2003 in order to change an eligibility
criterion concerning the time for obtaining a high school diploma from
10 years to 14 years for reservists who first become eligible after
September 30, 1992. Changes:

> In §21.1032, revised paragraph (c);
>
> In §21.7540, revised paragraphs (a) introductory text, (a)(3), and
> (a)(4), and added a new paragraph (a)(5);
>
> In §21.7550, redesignated paragraphs (b)--(d) as (c)--(e), added a new
> paragraph (b), and revised paragraphs (a), (d), and (e)(1); and
>
> In §21.7551, revised paragraphs (a) introductory text, (a)(1), (b)(1),
> and (c)(1)(ii).

**§21.1031 VA responsibilities when a claim is filed.**

\(a\) *VA will furnish forms*. VA will furnish all necessary claim
forms, instructions, and, if appropriate, a description of any
supporting evidence required upon receipt of an informal claim.
(Authority: 38 U.S.C. 5102)

\(b\) *Request for additional evidence*. If a formal claim for
educational assistance is incomplete, or if VA requires additional
evidence or information to adjudicate the claim, VA will notify the
claimant of the evidence and/or information necessary to complete or
adjudicate the claim and of the time limit provisions of §21.1032(b).
(Authority: 38 U.S.C. 5103)

\[31 FR 6771, May 6, 1966, as amended at 48 FR 37971, Aug. 22, 1983; 64
FR 23771, May 4, 1999\]

**Supplement *Highlights* reference**: 42(1)

**§21.1032 Time limits.**

The provisions of this section are applicable to informal claims and
formal claims.

\(a\) *Failure to furnish form, information, or notice of time limit*.
VA's failure to give a claimant or potential claimant any form or
information concerning the right to file a claim or to furnish notice of
the time limit for the filing of a claim will not extend the time
periods allowed for these actions. (Authority: 38 U.S.C. 5101, 5113)

\(b\) *Notice of time limit for filing evidence*. If a claimant's claim
is incomplete, VA will notify the claimant of the evidence necessary to
complete the claim. Unless payment of educational assistance is
permitted by paragraph (e) of this section, if the evidence is not
received within one year from the date of such notification, VA will not
pay educational assistance by reason of that claim. (Authority: 38
U.S.C. 5103)

\(c\) *Time limit for filing a claim for an extended period of
eligibility under 38 U.S.C. chapter 30, 32, or 35, and 10 U.S.C. chapter
1606*. VA must receive a claim for an extended period of eligibility
provided by §21.3047, §21.5042, §21.7051, or §21.7551 by the later of
the following dates.

\(1\) One year from the date on which the spouse's, surviving spouse's,
veteran's, or reservist's original period of eligibility ended; or

\(2\) One year from the date on which the spouse's, surviving spouse's,
veteran's, or reservist's physical or mental disability no longer
prevented him or her from beginning or resuming a chosen program of
education. (Authority: 10 U.S.C. 16133(b); 38 U.S.C. 3031(d), 3232(a),
3512).

\(d\) *Time limit for filing for an extension of eligibility due to
suspension of program* *(38 U.S.C. chapter 35)*. VA must receive a claim
for an extended period of eligibility due to a suspension of an eligible
child's program of education as provided in §21.3043 by the later of the
following dates.

\(1\) One year from the date on which the child's original period of
eligibility ended; or

\(2\) One year from the date on which the condition that caused the
suspension of the program of education ceased to exist. (Authority: 38
U.S.C. 3512(c))

\(e\) *Extension for good cause*.

\(1\) VA may extend for good cause a time limit within which a claimant
or beneficiary is required to act to perfect a claim or challenge an
adverse VA decision. VA may grant such an extension only when the
following conditions are met:

\(i\) When a claimant or beneficiary requests an extension after
expiration of a time limit, he or she must take the required action
concurrently with or before the filing of that request; and

\(ii\) The claimant or beneficiary must show good cause as to why he or
she could not take the required action during the original time period
and could not have taken the required action sooner.

\(2\) Denials of time limit extensions are separately appealable issues.
(Authority: 38 U.S.C. 5101, 5113)

\(f\) *Computation of time limit*.

\(1\) In computing the time limit for any action required of a claimant
or beneficiary, including the filing of claims or evidence requested by
VA, VA will exclude the first day of the specified period, and will
include the last day. This rule is applicable in cases in which the time
limit expires on a workday. When the time limit would expire on a
Saturday, Sunday, or holiday, the VA will include the next succeeding
day in the computation.

\(2\) The first day of the specified period referred to in paragraph
(f)(1) of this section will be the date of the letter of notification to
the claimant or beneficiary for purposes of computing time limits. As to
appeals, see §§20.302 and 20.305 of this chapter. (Authority: 38 U.S.C.
501(a))

\[38 FR 14930, June 7, 1973, as amended at 39 FR 43220, Dec. 11, 1974;
44 FR 62494, Oct. 31, 1979; 45 FR 67092, Oct. 9, 1980; 48 FR 37971, Aug.
22, 1983; 54 FR 28676, July 7, 1989; 64 FR 23771, May 4, 1999; 71 FR
1497, Jan. 10, 2006\]

**Supplement *Highlights* references**: 42(1), 69(1).

*Next Section is §21.3001*

Reserved

Reserved

## Eligibility

**§21.7540 Eligibility for educational assistance.**

\(a\) *Basic eligibility requirements*. A reservist must meet the
requirements for a secondary school diploma (or an equivalency
certificate) before applying for educational assistance. VA will decide
whether a reservist met those requirements before applying for
educational assistance. If the reservist applies before completing the
requirements, VA will disallow the application. A reservist's premature
application will not prevent the reservist from establishing eligibility
at a later time by applying for educational assistance again after
having completed the academic requirements. The Armed Forces will decide
whether a reservist has met all the other eligibility criteria needed in
order to receive educational assistance pursuant to 10 U.S.C. chapter
1606. To be eligible a reservist:

\(1\) Shall:

\(i\) Enlist, reenlist, or extend an enlistment as a Reserve for service
in the Selected Reserve so that the total period of obligated service is
at least six years from the date of such enlistment, reenlistment, or
extension; or

\(ii\) Be appointed as, or be serving as, a reserve officer and agree to
serve in the Selected Reserve for a period of not less than six years in
addition to any other period of obligated service in the Selected
Reserve to which the person may be subject;

\(2\) Must complete his or her initial period of active duty for
training;

\(3\) Must be participating satisfactorily in the Selected Reserve;

\(4\) Must not have elected to have his or her service in the Selected
Reserve credited toward establishing eligibility to benefits provided
under 38 U.S.C. chapter 30; and

\(5\) Must have met the requirements for a secondary school diploma (or
an equivalency certificate) before applying for educational assistance.
(Authority: 10 U.S.C. 16132; 38 U.S.C. 3033(c)).

\(b\) *Eligibility requirements for expanded benefits*.

\(1\) A reservist shall be eligible to pursue all types of training
described in subpart L of this part regardless of whether he or she has
received a baccalaureate degree or equivalent evidence of completion of
study if:

\(i\) After September 30, 1990, he or she takes one of the actions
described in paragraph (a)(1)(i) or (a)(1)(ii) of this section;

\(ii\) The reservist meets the criteria of paragraphs (a)(2) through
(a)(4) of this section; and

\(iii\) The reservist does not have his or her eligibility limited as
described in paragraph (c) of this section.

\(2\) A reservist shall be eligible to pursue all types of training
described in subpart L of this part except the training described in
paragraph (b)(3) of this section if:

\(i\) After June 30, 1985, but not after September 30, 1990, he or she
takes one of the actions described in paragraph (a)(1) or (a)(2) of this
section;

\(ii\) The reservist has not received a baccalaureate degree or the
equivalent evidence of completion of study;

\(iii\) The reservist meets all the other eligibility criteria of
paragraph (a) of this section; and

\(iv\) The reservist does not have his or her eligibility limited by
paragraph (c) of this section.

\(3\) The types of training which a reservist described in paragraph
(b)(1) of this section may pursue, but which may not be pursued by a
reservist described in paragraph (b)(2), are:

\(i\) A course which is offered by an educational institution which is
not an institution of higher learning (to determine if a nursing course
is offered by an institution of higher learning, see §21.7622(f));

\(ii\) A correspondence course;

\(iii\) An accredited independent study course leading to a standard
college degree. (See §21.7622(f) concerning enrollment in a
nonaccredited independent study course after October 28, 1992);

\(iv\) An accredited independent study course leading to a certificate
that reflects educational attainment from an institution of higher
learning. This provision applies to enrollment in an independent study
course that begins on or after December 27, 2001. (See §21.7622(f)
concerning enrollment in a nonaccredited independent study course after
October 28, 1992);

\(v\) A refresher, remedial or deficiency course;

\(vi\) A cooperative course;

\(vii\) An apprenticeship or other on-job training; and

\(viii\) A flight course. (Authority: 10 U.S.C. 16131, 16132, 16136;
sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; 38 U.S.C. 3680A)

\(c\) *Limitations on establishing eligibility*.

\(1\) An individual must elect in writing whether he or she wishes
service in the Selected Reserve to be credited towards establishing
eligibility under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606
when:

\(i\) The individual is a reservist who is eligible for basic
educational assistance provided under 38 U.S.C. 3012, and has
established eligibility to that assistance partially through service in
the Selected Reserve; or

\(ii\) The individual is a member of the National Guard or Air National
Guard who has established eligibility for basic educational assistance
provided under 38 U.S.C. 3012 through activation under a provision of
law other than 32 U.S.C. 316, 502, 503, 504, or 505 followed by service
in the Selected Reserve.

\(2\) An election under this paragraph (c) to have Selected Reserve
service credited towards eligibility for payment of educational
assistance under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606 is
irrevocable when the reservist either negotiates the first check or
receives the first payment by electronic funds transfer of the
educational assistance elected.

\(3\) If a reservist is eligible to receive educational assistance under
both 38 U.S.C. chapter 30 and 10 U.S.C. chapter 1606, he or she may
receive educational assistance alternately or consecutively under each
of these chapters to the extent that the educational assistance is based
on service not irrevocably credited to one or the other chapter as
provided in paragraphs (c)(1) and (c)(2) of this section. (Authority: 10
U.S.C. 16132; 38 U.S.C. 3033(c))

\(d\) *Dual eligibility*. An individual who has established eligibility
for basic educational assistance under 38 U.S.C. chapter 30 solely
through service on active duty may establish eligibility for educational
assistance under 10 U.S.C. chapter 1606 by meeting the requirements of
paragraph (a) of this section. (Authority: 10 U.S.C. 16132(d), 16134)

(The information collection requirements in this section have been
approved by the Office of Management and Budget under control number
2900-0594)

\[53 FR 34740, Sept. 8, 1988, as amended at 56 FR 9628, Mar. 7, 1991; 57
FR 57106, Dec. 3, 1992; 61 FR 20729, May 8, 1996; 61 FR 29301, June 10,
1996; 63 FR 45718, Aug. 27, 1998; 68 FR 59731, Oct. 17, 2003; 71 FR
1497, Jan. 10, 2006\]

**Supplement *Highlights* references**: 27(4), 40(1), 64(1), 69(1).

# Next Section is §21.7550

**§21.7550 Ending dates of eligibility.**

\(a\) *Time limit on eligibility*.

\(1\) *Reservists who become eligible before October 1, 1992*. Except as
provided in §21.7551 and paragraphs (b), (c), (d), and (e) of this
section, if the reservist becomes eligible for educational assistance
before October 1, 1992, the period of eligibility expires effective the
earlier of the following dates:

\(i\) The last day of the 10-year period beginning on the date the
reservist becomes eligible for educational assistance; or

\(ii\) The date the reservist is separated from the Selected Reserve.

\(2\) *Reservists who become eligible after September 30, 1992*. Except
as provided in §21.7551 and paragraphs (b), (c), (d), and (e) of this
section, if a reservist becomes eligible for educational assistance
after September 30, 1992, the period of eligibility expires effective
the earlier of the following dates:

\(i\) The last day of the 14-year period beginning on the date the
reservist becomes eligible for educational assistance; or

\(ii\) The date the reservist is separated from the Selected Reserve.
(Authority: 10 U.S.C. 16133)

\(b\) *Extension due to active duty orders*. If the reservist serves on
active duty pursuant to an order to active duty issued under section
12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10, U.S. Code,
the period of this active duty plus four months shall not be considered
in determining the time limit on eligibility found in paragraph (a) of
this section. (Authority: 10 U.S.C. 16133)

\(c\) *Completion of term of program.*

\(1\) If a reservist is enrolled in an educational institution regularly
operated on the quarter or semester system, and the reservist's period
of eligibility as defined in paragraph (a) of this section would expire
during a quarter or semester, the period of eligibility shall be
extended to the end of the quarter or semester.

\(2\) If a reservist is enrolled in an educational institution not
regularly operated on the quarter or semester system and the reservist's
period of eligibility as defined in paragraph (a) of this section would
expire after a major portion of the course is completed, the period of
eligibility shall be extended until the earlier of the following occurs:

\(i\) The end of the course, or

\(ii\) 12 weeks from the date on which the reservist's eligibility
otherwise would have expired. (Authority: 10 U.S.C. 16133(b)(1); Pub. L.
98-525)

\(d\) *Discharge for disability*. In the case of a reservist separated
from the Selected Reserve because of a disability which was not the
result of the individual's own willful misconduct and which was incurred
on or after the date on which the reservist became entitled to education
assistance, the reservist's period of eligibility expires effective the
last day of the:

\(1\) 10-year period beginning on the date the reservist becomes
eligible for educational assistance if the reservist became eligible
before October 1, 1992; or

\(2\) 14-year period beginning on the date the reservist becomes
eligible for educational assistance if the reservist becomes eligible
after September 30, 1992. (Authority: 10 U.S.C. 16133)

\(e\) *Unit deactivated*.

\(1\) Except as provided in paragraph (e)(3) or (e)(4) of this section,
the period of eligibility of a reservist, eligible for educational
assistance under this subpart, who ceases to become a member of the
Selected Reserve during the period beginning October 1, 1991, and ending
December 31, 2001, under either of the conditions described in paragraph
(e)(2) of this section will expire on the date:

\(i\) 10 years after the date the reservist becomes eligible for
educational assistance if the reservist became eligible before October
1, 1992; or

\(ii\) 14 years after the date the reservist becomes eligible for
educational assistance if the reservist becomes eligible after September
30, 1992.

\(2\) The conditions referred to in paragraph (e)(1) of this section for
ceasing to be a member of the Selected Reserve are:

\(i\) The deactivation of the reservist's unit of assignment; and

\(ii\) The reservist's involuntarily ceasing to be designated as a
member of the Selected Reserve pursuant to 10 U.S.C. 10143(a).

\(3\) The provisions of paragraphs (e)(1) and (e)(2) of this section do
not apply if the reservist ceases to be a member of the Selected Reserve
under adverse conditions, as characterized by the Secretary of the
military department concerned. The expiration of such a reservist's
period of eligibility will be on the date the reservist ceases, under
adverse conditions, to be a member of the Selected Reserve.

\(4\) A reservist's period of eligibility will expire if he or she is a
member of a reserve component of the Armed Forces and (after having
involuntarily ceases to be a member of the Selected Reserve) is
involuntarily separated from the Armed Forces under adverse conditions,
as characterized by the Secretary of the military department concerned.
The expiration of such a reservist's period of eligibility will be on
the date the reservist is involuntarily separated under adverse
conditions from the Armed Forces. (Authority: 10 U.S.C. 16133)

\[53 FR 34740, Sept. 8, 1988, as amended at 57 FR 57106, Dec. 3, 1992;
58 FR 51783, Oct. 5, 1993; 61 FR 20729, May 8, 1996; 61 FR 29302, June
10, 1996; 68 FR 59731, Oct. 17, 2003; 71 FR 1498, Jan. 10, 2006\]

**Supplement *Highlights* references**: 9(2), 27(4), 64(1), 69(1).

Reserved

**§21.7551 Extended period of eligibility.**

\(a\) *Period of eligibility may be extended.* VA shall grant an
extension of a delimiting period determined by §21.7550(a) of this part
provided:

\(1\) The individual applies for an extension within the time period
specified in §21.1033(c) of Subpart B.

\(2\) The individual was prevented from initiating or completing the
chosen program of education within the otherwise applicable eligibility
period, because of a physical or mental disability, which is not the
result of the reservist's own willful misconduct, and which was incurred
in or aggravated by service in the Selected Reserve. VA will not
consider the disabling effects of chronic alcoholism to be the result of
willful misconduct. (See § 21.7520(b)(29)). Evidence must establish that
such a program of education was medically infeasible. VA will not grant
a reservist an extension for a period of disability which was 30 days or
less unless the evidence establishes that the reservist was prevented
from enrolling or reenrolling in the chosen program, or was forced to
discontinue attendance, because of the short disability. (Authority: 10
U.S.C. 16133(b)(2), 38 U.S.C. 105, 3031(d); Pub. L. 98-525, Pub. L.
100-689) (Nov. 18, 1988) \[Paragraph (a)(2) is effective retroactively
to Nov. 18, 1988\]

\(b\) *Commencing date.* The reservist shall elect the commencing date
of an extended period of eligibility. The date chosen:

\(1\) Must be on or after the original date of expiration of eligibility
as determined by §21.7550(a) of this part, and

\(2\) Must either be:

\(i\) On or before the 90th day following the date on which the
reservist's application for an extension was approved by VA if the
reservist is training during the extended period of eligibility in a
course not organized on a term, quarter or semester basis, or

\(ii\) On or before the first day of a term, quarter or semester within
an ordinary school year following the 90th day after the reservist's
application for an extension was approved in VA, if the reservist is
training during the extended period of eligibility in a course organized
on a term, quarter or semester basis. (Authority: 10 U.S.C. 16133(b)(2),
38 U.S.C. 3031(d); Pub. L. 98-525)

\(c\) *Length of extended period of eligibility.* A reservist's extended
period of eligibility shall be for the length of time that the reservist
was prevented from initiating or completing his or her chosen program of
education, except that it must end when the reservist is separated from
the Selected Reserve. VA shall determine the length of time the
reservist was prevented from initiating or completing his or her chosen
program of education as follows:

\(1\) If the reservist is in training in a course organized on a term,
quarter or semester basis, his or her extended period of eligibility
shall contain the same number of days as the number of days from the
date during the reservist's original eligibility period that his or her
training became medically infeasible to the earliest of the following
dates:

\(i\) The commencing date of the ordinary term, quarter or semester
following the day the reservist's training became medically infeasible,

\(ii\) The last date of the reservist's delimiting date as determined by
§21.7550(a) of this part, or

\(iii\) The date the reservist resumed training.

\(2\) If the reservist is training in a course not organized on a term,
quarter or semester basis, his or her extended period of eligibility
shall contain the same number of days as the number of days from the
date during the reservist's original delimiting period that his or her
training became medically infeasible to the earlier of the following
dates:

\(i\) The date the reservist's training became medically feasible, or

\(ii\) The reservist's delimiting date as determined by §21.7550(a)(1)
of this part. (Authority: 10 U.S.C. 16133(b)(2), 38 U.S.C. 3031(d); Pub.
L. 98-525)

\[53 FR 34740, Sept. 8, 1988, as amended at 57 FR 57105, Dec. 3, 1992;
61 FR 20729, May 8, 1996; 71 FR 1498, Jan. 10, 2006\]

**Supplement *Highlights* reference**: 69(1)

*Next Section is §21.7570*