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. 59

Covering period of *Federal Register* issues

through ­­­­­­­­­­­­23 September 2003

Copyright © 2003 Jonathan Publishing

**Need Assistance?**

Printing for all supplements is performed by the United States
Government

Printing Office. Distribution is the responsibility of the

VA Forms and Publications Depot. Accordingly:

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Directives, Forms and Records Staff

Mail Code: 20S5

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7080

Fax: 202/275-5947

Questions concerning the **[filing instructions]{.smallcaps}** for this
loose-leaf service,

or the reporting of **[substantive errors]{.smallcaps}** in the text,

may be directed to:

Jonathan Publishing

855 Yorks Crossing

Driftwood TX 78619

Telephone: 512/858-1225

Fax: 512/858-1230

E-mail: garyknight@ev1.net

**Internet: http://www.jonpub.com**

Copyright © 2003 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. 59**

25 September 2003

Covering the period of Federal Register issues

through September 23, 2003

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. 59**

**September 25, 2003**

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

**all prior supplements have been filed**

*Remove these Add these Section(s)*

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

#  B-1 to B-2 B-1 to B-2 Cover page

**B-13 to B-14 B-13 to B-14 Index to Book B**

**B-23 to B-26 B-23 to B-26 Index to Book B**

3.800-1 to 3.800-2 3.800-1 to 3.800-2 Index entry

3.815-4 to 3.815-7 3.815-4 to [3.816-4]{.underline} §3.816 (new)

**Be sure to complete the**

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

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

> **HIGHLIGHTS**

**Book B, Supplement No. 59**

**September 25, 2003**

***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 25 August 2003, the VA published a final rule, effective 24
September 2003, to add a new provision to its adjudication regulations
concerning certain awards of disability compensation and dependency and
indemnity compensation. The new rule explains that certain awards of
disability compensation or DIC made pursuant to liberalizing regulations
concerning diseases presumptively associated with herbicide exposure may
be made effective retroactive to the date of the claim or the date of a
previously denied claim, even if such date is earlier than the effective
date of the regulation establishing the presumption; and also provides
that VA may pay to certain survivors of a deceased beneficiary, or to
the beneficiary's estate, any amounts the beneficiary was entitled to
receive under the effective-date provisions of this rule, but which were
not paid prior to the beneficiary's death. Change:

• Added new §3.816.

**Veterans Benefits Administration**

**Department of Veterans Affairs**

Custom Federal Regulations Service™

**Book B---Adjudication**

Code of Federal Regulations

Title 38, Part 3

Jonathan Publishing

Copyright © 2003 Jonathan Publishing

**Need Assistance?**

Printing for all supplements is performed by the United States
Government

Printing Office. Distribution is the responsibility of the

VA Forms and Publications Depot. Accordingly:

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Directives, Forms and Records Staff

Mail Code: 20S5

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7080

Fax: 202/275-5947

Questions concerning the **[filing instructions]{.smallcaps}** for this
loose-leaf service,

or the reporting of **[substantive errors]{.smallcaps}** in the text,

may be directed to:

Jonathan Publishing

855 Yorks Crossing

Driftwood TX 78619

Telephone: 512/858-1225

Fax: 512/858-1230

Internet: http://www.jonpub.com

Copyright © 2003 Jonathan Publishing

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

**Incompetents, Guardianship and institutional awards**

3.850 General 3.850-1

Compensation for certain disabilities due to undiagnosed illnesses
3.317-1

Continuance of total disability ratings 3.343-1

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

Direct service connection; wartime and peacetime 3.304-1

Disease subject to presumptive service connection 3.309-1

Examinations 3.326-1

General rating considerations 3.321-1

Independent medical opinions 3.328-1

Multiple noncompensable service-connected disabilities 3.324-1

Permanent and total disability ratings for pension purposes 3.342-1

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

related disease, or disease associated with exposure to certain

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

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

Principles relating to service connection 3.303-1

Proximate results, secondary conditions 3.310-1

Rating of disabilities aggravated by service 3.322-1

Reexaminations 3.327-1

Resumption of rating when veteran subsequently reports for

Department of Veterans Affairs examination 3.330-1

Stabilization of disability evaluations 3.344-1

Total and permanent total ratings and unemployability 3.340-1

Total disability ratings for compensation purposes 3.341-1

**Ratings for special purposes**

Civil service preference ratings 3.357-1

Compensation for disability or death from hospitalization, medical

or surgical treatment, examinations or vocational rehabilitation

training (§ 3.800) 3.358-1

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

Criteria for permanent need for aid and attendance

and "permanently bedridden" 3.352-1

Determinations of incompetency and competency 3.353-1

Determination of service connection for former members of the

Armed Forces of Czechoslovakia or Poland 3.359-1

Determinations of insanity 3.354-1

Service-connected health-care eligibility of certain persons

administratively discharged under other than honorable condition 3.360-1

Special monthly compensation ratings 3.350-1

Special monthly dependency and indemnity compensation, death

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

Testamentary capacity for insurance purposes 3.355-1

**Reductions and discontinuances**

Children 3.503-1

General 3.500-1

Parents; aid and attendance 3.504-1

Surviving spouses 3.502-1

Veterans 3.501-1

**Relationship**

Child 3.57-1

Child adopted out of family 3.58-1

Continuous cohabitation 3.53-1

Definition of "living with" 3.60-1

Marriage dates 3.54-1

Marriages deemed valid 3.52-1

Parent 3.59-1

Reinstatement of benefits eligibility based upon

terminated marital relationships 3.55-1

Spouse and surviving spouse 3.50-1

**Retirement**

Emergency officers' retirement pay 3.754-1

Public Health Service 3.753-1

Retirement pay 3.750-1

Statutory awards; retired service personnel 3.751-1

**Special benefits**

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

Condition presumptively associated with herbicide exposure 3.816-1

Automobiles or other conveyances; certification 3.808-1

Clothing allowance 3.810-1

Death gratuity; certification 3.806-1

Dependents' educational assistance; certification 3.807-1

Disability or death due to hospitalization, etc 3.800-1

Interim benefits for disability or death due to chloracne or

porphyria cutanea tarda 3.813-1

Loan guaranty for surviving spouses; certification 3.805-1

Minimum income annuity and gratuitous annuity 3.811-1

Medal of Honor 3.802-1

Monetary allowance under 38 U.S.C. 1805 for an individual suffering

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

Vietnam veteran 3.814-1

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

Naval pension 3.803-1

Special acts 3.801-1

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

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

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

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

**Universal Adjudication Rules That Apply to Benefit Claims**

**Governed by Part 3 of This Title**

Scope of Applicability 3.2100-1

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

\-

Reserved

**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.**

\(a\) 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.

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

**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).

\(6\) Conditions that are due to a fetal or neonatal infirmity with
well-established causes or that are miscellaneous pediatric conditions
are not covered birth defects. These include, but are not limited to,
the following:

> \(i\) Asthma and other allergies;
>
> \(ii\) Effects of maternal infection during pregnancy, including but
> not limited to, maternal rubella, toxoplasmosis, or syphilis;
>
> \(iii\) Fetal alcohol syndrome or fetal effects of maternal drug use;
>
> \(iv\) Hyaline membrane disease;
>
> \(v\) Maternal-infant blood incompatibility;
>
> \(vi\) Neonatal infections;
>
> \(vii\) Neonatal jaundice;
>
> \(viii\) Post-infancy deafness/hearing impairment (onset after the age
> of one year);
>
> \(ix\) Prematurity; and
>
> \(x\) Refractive disorders of the eye.

\(7\) Conditions that are developmental disorders are not covered birth
defects. These include, but are not limited to, the following:

> \(i\) Attention deficit disorder;
>
> \(ii\) Autism;
>
> \(iii\) Epilepsy diagnosed after infancy (after the age of one year);
>
> \(iv\) Learning disorders; and
>
> \(v\) Mental retardation (unless part of a syndrome that is a covered
> birth defect).

\(8\) Conditions that do not result in permanent physical or mental
disability are not covered birth defects. These include, but are not
limited to:

> \(i\) Conditions rendered non-disabling through treatment;
>
> \(ii\) Congenital heart problems surgically corrected or resolved
> without disabling residuals;
>
> \(iii\) Heart murmurs unassociated with a diagnosed cardiac
> abnormality;
>
> \(iv\) Hemangiomas that have resolved with or without treatment; and
>
> \(v\) Scars (other than of the head, face, or neck) as the only
> residual of corrective surgery for birth defects.

\(e\) *Disability evaluations*. Whenever VA determines, upon receipt of
competent medical evidence, that an individual has one or more covered
birth defects, VA will determine the level of disability currently
resulting, in combination, from the covered birth defects and associated
disabilities. No monetary allowance will be payable under this section
if VA determines under this paragraph that an individual has no current
disability resulting from the covered birth defects, unless VA
determines that the provisions of paragraph (a)(3) of this section are
for application. Except as otherwise provided in paragraph (a)(3) of
this section, VA will determine the level of disability as follows:

> \(1\) *Levels of disability*.

\(i\) *Level 0*. The individual has no current disability resulting from
covered birth defects.

\(ii\) *Level I*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that only
occasionally or intermittently limit or prevent some daily activities;
or

\(B\) The individual has disfigurement or scarring of the head, face, or
neck without gross distortion or gross asymmetry of any facial feature
(nose, chin, forehead, eyes (including eyelids), ears (auricles),
cheeks, or lips).

\(iii\) *Level II*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that
frequently or constantly limit or prevent some daily activities, but the
individual is able to work or attend school, carry out most household
chores, travel, and provide age-appropriate self-care, such as eating,
dressing, grooming, and carrying out personal hygiene, and
communication, behavior, social interaction, and intellectual
functioning are appropriate for age; or

\(B\) The individual has disfigurement or scarring of the head, face, or
neck with either gross distortion or gross asymmetry of one facial
feature or one paired set of facial features (nose, chin, forehead, eyes
(including eyelids), ears (auricles), cheeks, or lips).

\(iv\) *Level III*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that
frequently or constantly limit or prevent most daily activities, but the
individual is able to provide age-appropriate self-care, such as eating,
dressing, grooming, and carrying out personal hygiene;

\(B\) The individual is unable to work or attend school, travel, or
carry out household chores, or does so intermittently and with
difficulty;

\(C\) The individual's communication, behavior, social interaction, and
intellectual functioning are not entirely appropriate for age; or

\(D\) The individual has disfigurement or scarring of the head, face, or
neck with either gross distortion or gross asymmetry of two facial
features or two paired sets of facial features (nose, chin, forehead,
eyes (including eyelids), ears (auricles), cheeks, or lips).

\(v\) *Level IV*. The individual meets one or more of the following
criteria:

\(A\) The individual has residual physical or mental effects that
prevent age-appropriate self-care, such as eating, dressing, grooming,
and carrying out personal hygiene;

\(B\) The individual's communication, behavior, social interaction, and
intellectual functioning are grossly inappropriate for age; or

\(C\) The individual has disfigurement or scarring of the head, face, or
neck with either gross distortion or gross asymmetry of three facial
features or three paired sets of facial features (nose, chin, forehead,
eyes (including eyelids), ears (auricles), cheeks, or lips).

\(2\) *Assessing limitation of daily activities*. Physical or mental
effects on the following functions are to be considered in assessing
limitation of daily activities:

> \(i\) Mobility (ability to stand and walk, including balance and
> coordination);
>
> \(ii\) Manual dexterity;
>
> \(iii\) Stamina;
>
> \(iv\) Speech;
>
> \(v\) Hearing;
>
> \(vi\) Vision (other than correctable refraction errors);
>
> \(vii\) Memory;
>
> \(viii\) Ability to concentrate;
>
> \(ix\) Appropriateness of behavior; and
>
> \(x\) Urinary and fecal continence.

\(f\) *Information for determining whether individuals have covered
birth defects and rating disability levels*.

\(1\) VA may accept statements from private physicians, or examination
reports from government or private institutions, for the purposes of
determining whether an individual has a covered birth defect and for
rating claims for covered birth defects. If they are adequate for such
purposes, VA may make the determination and rating without further
examination. In the absence of adequate information, VA may schedule
examinations for the purpose of determining whether an individual has a
covered birth defect and/or assessing the level of disability.

\(2\) Except in accordance with paragraph (a)(3) of this section, VA
will not pay a monthly monetary allowance unless or until VA is able to
obtain medical evidence adequate to determine that an individual has a
covered birth defect and adequate to assess the level of disability due
to covered birth defects.

\(g\) *Redeterminations*. VA will reassess a determination under this
section whenever it receives evidence indicating that a change is
warranted.

\(h\) *Referrals*. If a regional office is unclear in any case as to
whether a condition is a covered birth defect, it may refer the issue to
the Director of the Compensation and Pension Service for determination.

\(i\) *Effective dates*. Except as provided in §3.114(a) or paragraph
(i)(1) or (2) of this section, VA will award the monetary allowance
under subchapter II of 38 U.S.C. chapter 18, for an individual with
disability resulting from one or more covered birth defects, based on an

original claim, a claim reopened after final disallowance, or a claim
for increase, as of the date VA received the claim (or the date of birth
if the claim is received within one year of that date), the date
entitlement arose, or December 1, 2001, whichever is latest. Subject to
the condition that no benefits may be paid for any period prior to
December 1, 2001:

\(1\) VA will increase benefits as of the earliest date the evidence
establishes that the level of severity increased, but only if the
beneficiary applies for an increase within one year of that date.

\(2\) If a claimant reopens a previously disallowed claim based on
corrected military records, VA will award the benefit from the latest of
the following dates: the date the veteran or beneficiary applied for a
correction of the military records; the date the disallowed claim was
filed; or, the date one year before the date of receipt of the reopened
claim.

\(j\) *Reductions and discontinuances*. VA will generally reduce or
discontinue awards under subchapter II of 38 U.S.C. chapter 18 according
to the facts found except as provided in §§3.105 and 3.114(b).

\(1\) If benefits were paid erroneously because of beneficiary error, VA
will reduce or discontinue benefits as of the effective date of the
erroneous award.

\(2\) If benefits were paid erroneously because of administrative error,
VA will reduce or discontinue benefits as of the date of last payment.

(Authority: 38 U.S.C. 501, 1811, 1812, 1813, 1814, 1815, 1816, 1821,
1822, 1823, 1824, 5101, 5110, 5111, 5112)

\[67 FR 49587, July 31, 2002\]

**Supplement *Highlights* reference**: 54(2).

*Next Section is §3.816*

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

> **condition presumptively associated with herbicide exposure.**

\(a\) *Purpose*. This section states effective-date rules required by
orders of a United States district court in the class-action case of
*Nehmer v. United States Department of Veterans Affairs*, No. CV-86-6160
TEH (N.D. Cal.).

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

\(1\) *Nehmer class member* means:

\(i\) A Vietnam veteran who has a covered herbicide disease; or

\(ii\) A surviving spouse, child, or parent of a deceased Vietnam
veteran who died from a covered herbicide disease.

\(2\) *Covered herbicide disease* means a disease for which the
Secretary of Veterans Affairs has established a presumption of service
connection before October 1, 2002 pursuant to the Agent Orange Act of
1991, Public Law 102-4, other than chloracne. Those diseases are:

> \(i\) Type 2 Diabetes (Also known as type II diabetes mellitus or
> adult-onset diabetes).
>
> \(ii\) Hodgkin's disease.
>
> \(iii\) Multiple myeloma.
>
> \(iv\) Non-Hodgkin's lymphoma.
>
> \(v\) Acute and Subacute peripheral neuropathy.
>
> \(vi\) Porphyria cutanea tarda.
>
> \(vii\) Prostate cancer.
>
> \(viii\) Respiratory cancers (cancer of the lung, bronchus, larynx, or
> trachea).
>
> \(ix\) Soft-tissue sarcoma (as defined in §3.309(e)).

\(c\) *Effective date of disability compensation*. If a *Nehmer* class
member is entitled to disability compensation for a covered herbicide
disease, the effective date of the award will be as follows:

\(1\) If VA denied compensation for the same covered herbicide disease
in a decision issued between September 25, 1985 and May 3, 1989, the
effective date of the award will be the later of the date VA received
the claim on which the prior denial was based or the date the disability
arose, except as otherwise provided in paragraph (c)(3) of this section.
A prior decision will be construed as having denied compensation for the
same disease if the prior decision denied compensation for a disease
that reasonably may be construed as the same covered herbicide disease
for which compensation has been awarded. Minor differences in the
terminology used in the prior decision will not preclude a finding,
based on the record at the time of the prior decision, that the prior
decision denied compensation for the same covered herbicide disease.

\(2\) If the class member's claim for disability compensation for the
covered herbicide disease was either pending before VA on May 3, 1989,
or was received by VA between that date and the effective date of the
statute or regulation establishing a presumption of service connection
for the covered disease, the effective date of the award will be the
later of the date such claim was received by VA or the date the
disability arose, except as otherwise provided in paragraph (c)(3) of
this section. A claim will be considered a claim for compensation for a
particular covered herbicide disease if:

\(i\) The claimant's application and other supporting statements and
submissions may reasonably be viewed, under the standards ordinarily
governing compensation claims, as indicating an intent to apply for
compensation for the covered herbicide disability; or

\(ii\) VA issued a decision on the claim, between May 3, 1989 and the
effective date of the statute or regulation establishing a presumption
of service connection for the covered disease, in which VA denied
compensation for a disease that reasonably may be construed as the same
covered herbicide disease for which compensation has been awarded.

\(3\) If the class member's claim referred to in paragraph (c)(1) or
(c)(2) of this section was received within one year from the date of the
class member's separation from service, the effective date of the award
shall be the day following the date of the class member's separation
from active service.

\(4\) If the requirements of paragraph (c)(1) or (c)(2) of this section
are not met, the effective date of the award shall be determined in
accordance with §§3.114 and 3.400.

\(d\) *Effective date of dependency and indemnity compensation (DIC).*
If a *Nehmer* class member is entitled to DIC for a death due to a
covered herbicide disease, the effective date of the award will be as
follows:

\(1\) If VA denied DIC for the death in a decision issued between
September 25, 1985 and May 3, 1989, the effective date of the award will
be the later of the date VA received the claim on which such prior
denial was based or the date the death occurred, except as otherwise
provided in paragraph (d)(3) of this section.

\(2\) If the class member's claim for DIC for the death was either
pending before VA on May 3, 1989, or was received by VA between that
date and the effective date of the statute or regulation establishing a
presumption of service connection for the covered herbicide disease that
caused the death, the effective date of the award will be the later of
the date such claim was received by VA or the date the death occurred,
except as otherwise provided in paragraph (d)(3) of this section. In
accordance with §3.152(b)(1), a claim by a surviving spouse or child for
death pension will be considered a claim for DIC. In all other cases, a
claim will be considered a claim for DIC if the claimant's application
and other supporting statements and submissions may reasonably be
viewed, under the standards ordinarily governing DIC claims, as
indicating an intent to apply for DIC.

\(3\) If the class member's claim referred to in paragraph (d)(1) or
(d)(2) of this section was received within one year from the date of the
veteran's death, the effective date of the award shall be the first day
of the month in which the death occurred.

\(4\) If the requirements of paragraph (d)(1) or (d)(2) of this section
are not met, the effective date of the award shall be determined in
accordance with §§3.114 and 3.400.

\(e\) *Effect of other provisions affecting retroactive entitlement*.

\(1\) *General*. If the requirements specified in paragraphs (c)(1) or
(c)(2) or (d)(1) or (d)(2) of this section are satisfied, the effective
date shall be assigned as specified in those paragraphs, without regard
to the provisions in 38 U.S.C. 5110(g) or §3.114 prohibiting payment for
periods prior to the effective date of the statute or regulation
establishing a presumption of service connection for a covered herbicide
disease. However, the provisions of this section will not apply if
payment to a *Nehmer* class member based on a claim described in
paragraph (c) or (d) of this section is otherwise prohibited by statute
or regulation, as, for example, where a class member did not qualify as
a surviving spouse at the time of the prior claim or denial.

\(2\) *Claims Based on Service in the Republic of Vietnam Prior To
August 5, 1964*. If a claim referred to in paragraph (c) or (d) of this
section was denied by VA prior to January 1, 1997, and the veteran's
service in the Republic of Vietnam ended before August 5, 1964, the
effective-date rules of this regulation do not apply. The effective date
of benefits in such cases shall be determined in accordance with 38
U.S.C. 5110. If a claim referred to in paragraph (c) or (d) of this
section was pending before VA on January 1, 1997, or was received by VA
after that date, and the veteran's service in the Republic of Vietnam
ended before August 5, 1964, the effective date shall be the later of
the date provided by paragraph (c) or (d) of this section or January 1,
1997. (Authority: Public Law 104-275, sec. 505)

\(f\) *Payment of Benefits to Survivors or Estates of Deceased
Beneficiaries*.

\(1\) *General*. If a *Nehmer* class member entitled to retroactive
benefits pursuant to paragraphs (c)(1) through (c)(3) or (d)(1) through
(d)(3) of this section dies prior to receiving payment of any such
benefits, VA shall pay such unpaid retroactive benefits to the first
individual or entity listed below that is in existence at the time of
payment:

\(i\) The class member's spouse, regardless of current marital status.

*Note to Paragraph (f)(1)(i):* For purposes of this paragraph, a spouse
is the person who was legally married to the class member at the time of
the class member's death.

\(ii\) The class member's child(ren), regardless of age or marital
status (if more than one child exists, payment will be made in equal
shares, accompanied by an explanation of the division).

*Note to Paragraph (f)(1)(ii):* For purposes of this paragraph, the term
"child" includes natural and adopted children, and also includes any
stepchildren who were members of the class member's household at the
time of the class member's death.

> \(iii\) The class member's parent(s), regardless of dependency (if
> both parents are alive, payment will be made in equal shares,
> accompanied by an explanation of the division).

*Note to Paragraph (f)(1)(iii):* For purposes of this paragraph, the
term "parent" includes natural and adoptive parents, but in the event of
successive parents, the persons who last stood as parents in relation to
the class member will be considered the parents.

\(iv\) The class member's estate.

\(2\) *Inapplicability of certain accrued benefit requirements*. The
provisions of 38 U.S.C. 5121(a) and §3.1000(a) limiting payment of
accrued benefits to amounts due and unpaid for a period not to exceed 2
years do not apply to payments under this section. The provisions of 38
U.S.C. 5121(c) and §3.1000(c) requiring survivors to file claims for
accrued benefits also do not apply to payments under this section. When
a *Nehmer* class member dies prior to receiving retroactive payments
under this section, VA will pay the amount to an identified payee in
accordance with paragraph (f)(1) of this section without requiring an
application from the payee. Prior to releasing such payment, however, VA
may ask the payee to provide further information as specified in
paragraph (f)(3) of this section.

\(3\) *Identifying payees*. VA shall make reasonable efforts to identify
the appropriate payee(s) under paragraph (f)(1) of this section based on
information in the veteran's claims file. If further information is
needed to determine whether any appropriate payee exists or whether
there are any persons having equal or higher precedence than a known
prospective payee, VA will request such information from a survivor or
authorized representative if the claims file provides sufficient contact
information. Before releasing payment to an identified payee, VA will
ask the payee to state whether there are any other survivors of the
class member who may have equal or greater entitlement to payment under
this section, unless the circumstances clearly indicate that such a
request is unnecessary. If, following such efforts, VA releases the full
amount of unpaid benefits to a payee, VA may not thereafter pay any
portion of such benefits to any other individual, unless VA is able to
recover the payment previously released.

\(4\) *Bar to accrued benefit claims*. Payment of benefits pursuant to
paragraph (f)(1) of this section shall bar a later claim by any
individual for payment of all or any part of such benefits as accrued
benefits under 38 U.S.C. 5121 and §3.1000.

\(g\) *Awards covered by this section*. This section applies only to
awards of disability compensation or DIC for disability or death caused
by a disease listed in paragraph (b)(2) of this section. (Authority: 38
U.S.C. 501)

\[68 FR 50970, Aug. 25, 2003\]

**Supplement *Highlights* reference**: 59(1).

# Next Section is §3.850