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

The provisions of this section apply to the payment of a special
allowance to certain surviving spouses and children of individuals who
died on active duty prior to August 13, 1981, or who died as a result of
a service-connected disability which was incurred or aggravated prior to
August 13, 1981. This special allowance is a replacement for certain
social security benefits which were either reduced or terminated by
provisions of the Omnibus Budget Reconciliation Act of 1981.

\(a\) *Eligibility requirements.*

\(1\) A determination must first be made that the person on whose
earnings record the claim is based either died on active duty prior to
August 13, 1981, or died as a result of a service-connected disability
which was incurred or aggravated prior to August 13, 1981. For purposes
of this determination, character of discharge is not a factor for
consideration, and death on active duty subsequent to August 12, 1981,
is qualifying provided that the death resulted from a service-connected
disability which was incurred or aggravated prior to August 13, 1981.

\(2\) Once a favorable determination has been made under paragraph
(a)(1) of this section, determinations as to the age, relationship and
school attendance requirements contained in paragraphs (a)(1) and (b)(1)
of section 156 of Pub. L. 97-377 will be made. In making these
eligibility determinations VA shall apply the provisions of the Social
Security Act, and any regulations promulgated pursuant thereto, as in
effect during the claimant's period of eligibility. Unless otherwise
provided in this section, when issues are raised concerning eligibility
or entitlement to this special allowance which cannot be appropriately
resolved under the provisions of the Social Security Act, or the
regulations promulgated pursuant thereto, the provisions of Title 38,
Code of Federal Regulations, are for application.

\(b\) *Computation of payment rate*:

\(1\) *Basic entitlement rate.* A basic entitlement rate will be
computed for each eligible claimant in accordance with the provisions of
subparagraphs (a)(2) and (b)(2) of section 156 of Pub. L. 97-377 using
data to be provided by the Social Security Administration. This basic
entitlement rate will then be used to compute the monthly payment rate
as described in paragraphs (b)(2) to (b)(6) of this section.

\(2\) *Original or reopened awards to surviving spouses.* The monthly
payment rate shall be equal to the basic entitlement rate increased by
the overall average percentage (rounded to the nearest tenth of a
percent) of each legislative increase in dependency and indemnity
compensation rates under 38 U.S.C. 1311 which became effective
concurrently with or subsequent to the effective date of the earliest
adjustment under section 215(i) of the Social Security Act that was
disregarded in computing the basic entitlement rate.

\(3\) *Original and reopened awards to children.* The monthly payment
rate shall be equal to the basic entitlement rate increased by the
overall average percentage (rounded to the nearest tenth of a percent)
of each legislative increase in the rates of educational assistance
allowance under 38 U.S.C. 3531(b) which became effective concurrently
with or subsequent to the effective date of the earliest adjustment
under section 215(i) of the Social Security Act that was disregarded in
computing the basic entitlement rate.

\(4\) *Subsequent legislative increases in rates.* The monthly rate of
special allowance payable to a surviving spouse shall be increased by
the same overall average percentage increase (rounded to the nearest
tenth of a percent) and on the same effective date as any legislative
increase in the rates payable under 38 U.S.C. 1311. The monthly rate of
special allowance payable to a child shall be increased by the same
overall average percentage increase (rounded to the nearest tenth of a
percent) and on the same effective date as any legislative increase in
the rates payable under 38 U.S.C. 3531(b).

\(5\) *Amendment of awards.* Prompt action shall be taken to amend any
award of this special allowance to conform with evidence indicating a
change in basic eligibility, any basic entitlement rate, or any
effective date previously determined. It is the claimant's
responsibility to promptly notify VA of any change in their status or
employment which affects eligibility or entitlement.

\(6\) *Rounding of monthly rates.* Any monthly rate computed under the
provisions of this paragraph, if not a multiple of \$1, shall be rounded
to the next lower multiple of \$1.

\(c\) *Claimants not entitled to this special allowance.* The following
are not entitled to this special allowance for the reasons indicated.

\(1\) Claimants eligible for death benefits under 38 U.S.C. 1151. The
deaths in such cases are not service-connected.

\(2\) Claimants eligible for death benefits under 38 U.S.C. 1318. The
deaths in such cases are not service connected.

\(3\) Claimants whose claims are based on an individual's service in:

\(i\) The Commonwealth Army of the Philippines while such forces were in
the service of the Armed Forces pursuant to the military order of the
President dated July 26, 1941, including recognized guerrilla forces
(see 38 U.S.C. 107).

\(ii\) The Philippine Scouts under section 14, Pub. L. 190, 79th
Congress (see 38 U.S.C. 107).

\(iii\) The commissioned corps of the Public Health Service
(specifically excluded by section 156 of Pub. L. 97-377), or

\(iv\) The National Oceanic and Atmospheric Administration (specifically
excluded by section 156 of Pub. L. 97-377 ).

\(d\) *Appellate jurisdiction.* VA shall have appellate jurisdiction of
all determinations made in connection with this special allowance.

\(e\) *Claims---formal and informal.* Formal claims for this special
allowance must be filed on a form prescribed by the Secretary of
Veterans Affairs. When informal claims or inquiries as to eligibility
are received, the appropriate application form shall be provided. In
such cases, the date of receipt of the informal claim or inquiry will be
accepted as the date of claim for this special allowance if a formal
claim on the prescribed form is received within one year from that date.

\(f\) *Retroactivity and effective dates.* There is no time limit for
filing a claim for this special allowance. Upon the filing of a claim,
benefits shall be payable for all periods of eligibility beginning on or
after the first day of the month in which the claimant first became
eligible for this special allowance, except that no payment may be made
for any period prior to January 1, 1983. (Authority: Sec. 156, Pub. L.
97-377, 96 Stat. 1830, 1920 (1982))

\[49 FR 21709, May 23, 1984, as amended at 54 FR 26030, June 21, 1989;
58 FR 34525, June 28, 1993; 60 FR 20643, Apr. 27, 1995\]

**Supplement *Highlights* references**: 8(5), 15(4).