Title 38—Pensions, Bonuses, and Veterans' Relief--Volume 1
PART 21—VETERAN READINESS AND EMPLOYMENT AND EDUCATION
§ 21.276   Incarcerated veterans.
(a) General. The provisions contained in this section describe the limitations on payment of subsistence allowance and charges for tuition and fees for:
(1) Incarcerated veterans;
(2) Formerly incarcerated veterans in halfway houses; and
(3) Incarcerated and formerly incarcerated veterans in work release programs.
(b) Definition. The term incarcerated veteran means any veteran incarcerated in a Federal, State, or local prison, jail, or other penal institution for a felony. It does not include any veteran who is pursuing a rehabilitation program under Chapter 31 while residing in a halfway house or participating in a work-release program in connection with such veteran's conviction of a felony.
(c) Subsistence allowance not paid to an incarcerated veteran. A subsistence allowance may not be paid to an incarcerated veteran convicted of a felony, but VA may pay all or part of the veteran's tuition and fees.
(d) Halfway house. A subsistence allowance may be paid to a veteran pursuing a rehabilitation program while residing in a halfway house as a result of a felony conviction even though all of the veteran's living expenses are paid by a non-VA Federal, State, or local government program.
(e) Work-release program. A subsistence allowance may be paid to a veteran in a work-release program as a result of a felony conviction.
(f) Services. VA may provide other appropriate services, including but not limited to medical, reader service, and tutorial assistance necessary for the veteran to pursue his or her rehabilitation program.
(g) Payment of allowance at the rates paid under Chapter 30. A veteran incarcerated for a felony conviction or a veteran in a halfway house or work-release program who elects payment at the educational assistance rate paid under Chapter 30 shall be paid in accordance with the provisions of law applicable to other incarcerated veterans training under Chapter 30.
(h) Apportionment. Apportionment of subsistence allowance which began before October 17, 1980 made to dependents of an incarcerated veteran convicted of a felony may be continued.
§ 21.282   Effective date of induction into a rehabilitation program; retroactive induction.
(a) Entering a rehabilitation program. The effective date of induction into a rehabilitation program is governed by the provisions of §§ 21.320 through 21.334, except as provided in this section.
(b) Retroactive induction. Subject to paragraphs (c) and (d) of this section, an individual may be inducted into a rehabilitation program on a retroactive basis. If the individual is retroactively inducted, VA may authorize payment pursuant to § 21.262 or § 21.264 for tuition, fees, and other verifiable expenses that an individual paid or incurred consistent with the approved rehabilitation program. In addition, VA may authorize payment of subsistence allowance pursuant to §§ 21.260, 21.266, and 21.270 for the period of retroactive induction, except for any period during which the individual was on active duty.
(c) Conditions for retroactive induction. Retroactive induction into a rehabilitation program may be authorized for a past period under a claim for vocational rehabilitation benefits when all of the following conditions are met:
(1) The past period is within—
(i) A period under § 21.40(c) during which a servicemember was awaiting discharge for disability; or
(ii) A period of eligibility under §§ 21.41 through 21.44 or 38 U.S.C. 3103.
(2) The individual was entitled to disability compensation under 38 U.S.C. chapter 11 during the period or would likely have been entitled to that compensation but for active-duty service.
(3) The individual met the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. chapter 31 in effect during the period.
(4) VA determines that the individual's training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual ( see §§ 21.80 through 21.88, and §§ 21.92 through 21.96).
(5) VA has recouped any benefits that it paid the individual for education or training pursued under any VA education program during any portion of the period.
(6) An initial evaluation was completed under § 21.50.
(7) A period of extended evaluation is not needed to be able to determine the reasonable feasibility of the achievement of a vocational goal.
(d) Effective date for retroactive induction. The effective date for retroactive induction is the date when all the entitlement conditions set forth in paragraph (c) of this section are met, and for a veteran (except as to a period prior to discharge from active duty) in no event before the effective date of a VA rating under 38 U.S.C. chapter 11 establishing a qualifying level under § 21.40 of service-connected disability.
§ 21.283   Rehabilitated.
(a) General. For purposes of chapter 31 a veteran shall be declared rehabilitated when he or she has overcome the employment handicap to the maximum extent feasible as described in paragraph (c), (d) or (e) of this section.
(b) Definition. The term “suitably employed” includes employment in the competitive labor market, sheltered situations, or on a nonpay basis which is consistent with the veteran's abilities, aptitudes and interests if the criteria contained in paragraph (c) (1) or (2) of this section are otherwise met.
(c) Rehabilitation to the point of employability has been achieved. The veteran who has been found rehabilitated to the point of employability shall be declared rehabilitated if he or she:
(1) Is employed in the occupational objective for which a program of services was provided or in a closely related occupation for at least 60 continuous days;
(2) Is employed in an occupation unrelated to the occupational objective of the veteran's rehabilitation plan for at least 60 continuous days if the veteran concurs in the change and such employment:
(i) Follows intensive, yet unsuccessful, efforts to secure employment for the veteran in the occupation objective of a rehabilitation plan for a closely related occupation contained in the veteran's rehabilitation plan;
(ii) Is consistent with the veterans's aptitudes, interests, and abilities; and
(iii) Utilizes some of the academic, technical or professional knowledge and skills obtained under the rehabilitation plan; or
(3) Pursues additional education or training, in lieu of obtaining employment, after completing his or her prescribed program of training and rehabilitation services if:
(i) The additional education or training is not approvable as part of the veteran's rehabilitation program under this chapter; and
(ii) Achievement of employment consistent with the veterans's aptitudes, interests, and abilities will be enhanced by the completion of the additional education or training.
(d) Rehabilitation to the point of employability has not been completed. A veteran under a rehabilitation plan who obtains employment without being declared rehabilitated to the point of employability as contemplated by the plan, including a veteran in a rehabilitation program consisting solely of employment services, is considered to be rehabilitated if the following conditions exist:
(1) The veteran obtains and retains employment substantially using the services and assistance provided under the plan for rehabilitation.
(2) The employment obtained is consistent with the veterans's abilities, aptitudes and interests.
(3) Maximum services feasible to assist the veteran to retain the employment obtained have been provided.
(4) The veteran has maintained the employment for at least 60 continuous days.
(e) Independent living. A veteran who has pursued a program of independent living services will be considered rehabilitated when all goals of the program have been achieved, or if not achieved, when:
(1) The veteran, nevertheless, has attained a substantial increase in the level of independence with the program assistance provided;
(2) The veteran has maintained the increased level of independence for at least 60 days; and
(3) Further assistance is unlikely to significantly increase the veteran's level of independence.
§ 21.284   Reentrance into a rehabilitation program.
(a) Reentrance into rehabilitation to the point of employability following a determination of rehabilitation. A veteran who has been found rehabilitated under provisions of § 21.283 may be provided an additional period of training or services only if the following conditions are met:
(1) The veteran has a compensable service-connected disability and either;
(2) Current facts, including any relevant medical findings, establish that the veteran's service-connected disability has worsened to the extent that the effects of the service-connected disability considered in relation to other facts precludes him or her from performing the duties of the occupation for which the veteran previously was found rehabilitated; or
(3) The occupation for which the veteran previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of the veteran's specific employment handicap and capabilities.
(b) Reentrance into a program of independent living services following a determination of rehabilitation. A finding of rehabilitation following a program of independent living services may only be set aside, and an additional period of independent living services provided, if the following conditions are met:
(1) Either:
(i) The veteran's condition has worsened and as a result the veteran has sustained a substantial loss of independence; or
(ii) Other changes in the veteran's circumstances have caused a substantial loss of independence; and
(2) The provisions of § 21.162 pertaining to participation in a program of independent living services are met.
(c) Reentrance into rehabilitation to the point of employability during a period of employment services. A finding of rehabilitation to the point of employability by VA may be set aside during a period of employment services and an additional period of training and related services provided, if any of the following conditions are met:
(1) The conditions for setting aside a finding of rehabilitation under paragraph (a) of this section are found;
(2) The rehabilitation services originally given to the veteran are now inadequate to make the veteran employable in the occupation for which he or she pursued rehabilitation;
(3) Experience during the period of employment services has demonstrated that employment in the objective or field for which the veteran was rehabilitated to the point of employability should not reasonably have been expected at the time the program was originally developed; or
(4) The veteran, because of technological change which occurred subsequent to the declaration of rehabilitation to the point of employability, is no longer able:
(i) To perform the duties of the occupation for which he or she trained, or in a related occupation; or
(ii) To secure employment in the occupation for which he or she trained, or in a related occupation.
§ 21.290   Training and rehabilitation resources.
(a) General. For the purpose of providing training and rehabilitation services under Chapter 31 VA may:
(1) Use facilities, staff and other resources of VA;
(2) Employ any additional personnel and experts needed;
(3) Use the facilities and services of any:
(i) Federal agency;
(ii) State agency;
(iii) Other public agency; or
(iv) Agency maintained by joint Federal and state contributions.
(4) Use the facilities and services of any:
(i) Public institution or establishment;
(ii) Private institution or establishment; or
(iii) Private individual.
(b) Agreement required. Use of facilities and services provided under paragraph (a) of this section shall be procured through contract, agreement, or other cooperative arrangement. The specific requirements for use of contracts or other arrangements are described in 48 CFR 871.2.
§ 21.292   Course approvals.
(a) Courses must be approved. Only those courses approved by the Department of Veterans Affairs shall be utilized to provide training and rehabilitation services under Chapter 31.
(b) General. VA staff in consultation with the veteran will select courses and services needed to carry out the rehabilitation plan only from those which VA determines are offered by a training or rehabilitation facility which:
(1) Meets the requirements of §§ 21.120 through 21.162;
(2) Meets the criteria of §§ 21.290 through 21.299; and
(3) Is in compliance with Title VI of the Civil Rights Act of 1964, section 503(a) Veterans Readjustment Act of 1972, and sections 501 through 504 of the Rehabilitation Act of 1973.
(c) Obtaining information necessary for approval. In determining whether services and courses may be approved for a veteran's training and rehabilitation under Chapter 31, the Department of Veterans Affairs may use information relevant to the approval or certification of such services and courses for similar purposes developed by:
(1) The State approving agencies;
(2) The Department of Labor;
(3) State vocational rehabilitation agencies;
(4) Nationally recognized accrediting associations;
(5) The Committee on Accreditation of Rehabilitation Facilities; and
(6) Other organizations and agencies.
(d) Course not approved. If a course or program is not approved by one of the agencies identified in paragraph (c) of this section, Veteran Readiness and Employment (VR&E) staff shall develop necessary information to determine whether criteria given in paragraphs (a) and (b) of this section are met.
(e) Course disapproved. The VR&E Officer may approve for 38 U.S.C. chapter 31 use courses that one of the agencies in paragraph (c) of this section has disapproved.
§ 21.294   Selecting the training or rehabilitation facility.
(a) Criteria the facility must meet. In addition to approval of the courses offered, all facilities which provide training and rehabilitation services under Chapter 31 must meet the criteria contained in §§ 21.290 through 21.299 applicable to the type of facility. Each facility must:
(1) Have space, equipment, instructional material and instructor personnel adequate in kind, quality, and amount to provide the desired service for the veteran;
(2) Fully accept the obligation to give the training or rehabilitation services in all parts of the plan which call for the facility's participation;
(3) Provide courses or services which:
(i) Meet the customary requirements in the locality for employment in the occupation in which training is given when employment is the objective of the program; and
(ii) Meet the requirements for licensure or permit to practice the occupation, if such is required;
(4) Agree:
(i) To cooperate with VA, and
(ii) To provide timely and accurate information covering the veteran's attendance, performance, and progress in training in the manner prescribed by VA.
(b) Selecting a facility for provision of independent living services. (1) Facilities offering independent living services will be utilized to:
(i) Evaluate independent living potential;
(ii) Provide a program of independent living services to veterans for whom an IILP (Individualized Independent Living Plan) has been developed; or
(iii) Provide independent living services to veterans as part of an IWRP (Individualized Written Rehabilitation Plan) or an IEEP (Individualized Extended Evaluation Plan).
(2) VA may use public and nonprofit agencies and facilities to furnish independent living services. Public and nonprofit facilities may be:
(i) Veterans Health Administration (VHA) facilities that provide independent living services;
(ii) Facilities which meet standards established by the State rehabilitation agency for rehabilitation facilities or for providers of independent living services;
(iii) Facilities which are neither approved nor disapproved by the State rehabilitation agency, but are determined by VA as able to provide the services necessary in an individual veteran's case.
(3) VA also may use for-profit agencies and organizations to furnish programs of independent living services only if services comparable in effectiveness to those provided by for-profit agencies and organizations:
(i) Are not available through public or nonprofit agencies or VHA; or
(ii) Cannot be obtained cost-effectively from public or nonprofit agencies or VHA.
(4) In addition to the criteria described in paragraph (b)(3)(i) of this section for public and private nonprofit agencies; for-profit agencies and organizations must meet any additional standards established by local, state (including the State rehabilitation agency), and Federal agencies which are applicable to for-profit facilities and agencies offering independent living services.
(c) Use of facilities. VA policy shall be to use VA facilities, if available, to provide rehabilitation services for veterans in a rehabilitation program under chapter 31. Non-VA facilities may be used to provide rehabilitation services only when necessary services are not readily available at a VHA facility. This policy shall be implemented in accordance with the provisions of paragraph (b) of this section in the case of the use of for-profit facilities to provide programs of independent living services, or in the case of employment services, provision of such services by non-VA sources is permitted under § 21.252.
(d) Selection of individual to provide training or rehabilitation services. Persons selected to provide individual instruction or other services as part of a program leading to the long-range goal of a veteran's plan must meet one of the following criteria:
(1) State requirements for teaching in the field or occupation for which training is being provided; or
(2) Expertise demonstrated through employment in the field in which the veteran is to be trained; or
(3) Requirements established by professional associations to provide the services needed by the veteran.
(e) Relatives. Relatives of the veteran may not be selected to provide services, even if otherwise qualified, unless such use is specifically permitted by VA regulation governing provision of the service. Selection of a training or rehabilitation facility owned by the veteran or a relative, or in which the veteran or a relative of the veteran has an interest is precluded, except for selection of a farm as provided in § 21.298. The term relative has the same meaning as in § 21.374.
(f) Contracts or agreements required. The Department of Veterans Affairs will negotiate formal contracts for reimbursement to providers of services as required by § 21.262. However, a letter contract will be effected immediately to permit the induction of the veteran into a program if:
(1) The veteran is immediately entered into a school with which a contract is required;
(2) The veteran's rehabilitation plan will be jeopardized by withholding services until a contract can be completed; and
(3) There are no known reasons to indicate that a contract may not be completed in a reasonable time.
(g) Training outside the United States. VA may only use those facilities and courses outside the United States to provide training under Chapter 31 which meet requirements for approval under §§ 21.4250(c) and 21.4260. The conditions under which training outside the United States may be approved are contained in § 21.130.
(h) Flight training. Flight training may only be provided in educational institutions which offer a standard college degree. The specific conditions under which flight training may be approved are contained in § 21.134.
(i) Additional consideration. The case manager will consider the veteran's preference for a particular training or rehabilitation facility but VA has final responsibility for selection of the facility.
§ 21.296   Selecting a training establishment for on-job training.
(a) Additional criteria for selecting a training establishment. In addition to meeting all of the requirements of § 21.294 the training establishment must:
(1) Sign an agreement to provide on-job training to disabled veterans;
(2) Provide continuous training for each veteran without interruption except for normal holidays and vacation periods;
(3) Provide daytime training for the veteran except when the veteran cannot obtain necessary on-job or related training during the working hours of the day;
(4) Modify the program when necessary to compensate for the limitations resulting from the veteran's disability or needs;
(5) Organize training into definite steps or units which will result in progressive training;
(6) Encourage rapid progress of each veteran rather than limit the progress of the individual to the progress of the group;
(7) Not, during the period of training, use the veteran on production activities beyond the point of efficient training;
(8) Agree to pay the veteran during training (except as provided in paragraph (b) of this section) a salary or wage rate;
(i) Commensurate with the value of the veteran's productive labor,
(ii) Not less than that prescribed by the Fair Labor Standards Act of 1938, as amended, and
(iii) Not less than that customarily paid to nonveteran-trainees in the same or similar training situation;
(9) Agree to provide the veteran with employment at the end of the training program, provided the veteran's conduct and progress have been satisfactory; and
(10) Agree to furnish VA a statement in writing showing wages, compensation, and other income paid directly or indirectly to each veteran in training under Chapter 31 during the month.
(b) On-job training at subminimum wage rates. A subminimum hourly wage rate for handicapped workers may be considered where necessary in order to prevent curtailment of opportunities for employment. Payment at the subminimum rate must be approved by the Wage and Hour Division of the Department of Labor.
§ 21.298   Selecting a farm.
(a) Control of the farm—farm operator. A farm selected for farm cooperative training must be under the control of the veteran by ownership, lease or other written tenure arrangement. If the veteran does not own the farm, the lease or other written agreement shall:
(1) Afford the veteran control of the farm at least until the end of his or her course;
(2) Allow the veteran's control to be such that he or she is able:
(i) To carry out the provisions of the training program; and
(ii) To operate the farm in accordance with the farm and home plan developed by the case manager and the veteran in collaboration with the instructor, and when appropriate, the landowner or lessor;
(3) Permit instruction in the planning, management, and operation of farming enterprise in the veteran's farm and home plan;
(4) At least by the end of the necessary minimum period of training, assure the veteran a reasonably satisfactory living under normal economic conditions;
(5) Provide for the necessary buildings and equipment to enable the veteran to satisfactorily begin pursuit of the course of farm cooperative training;
(6) Provide for resources which give reasonable promise that any additional items required for the pursuit of the course, including livestock, will be available as they become necessary;
(7) Provide for capital improvements to be made which are necessary for carrying out the farm and home plan, with the veteran furnishing no greater portion of the costs than the benefits accruing to the veteran warrant; and
(8) Provide for the landowner or leasor to share the costs of improved practices put into effect in proportion to the returns he or she will receive from such practices.
(b) Farms on which more than one person trains—farm operator. If a veteran in training is a partner of another person or if more than one person is involved in operating the farm, the farm shall be of such size and character that the farm:
(1) Together with the instruction part of the course will occupy the full time of the veteran; and
(2) Meets all requirements of paragraph (a) of this section.
(c) Selecting a farm—farm manager. The farm on which a veteran trains to become a farm manager shall be of such size and character that, together with the group instruction part of the course the farm:
(1) Will occupy the full time of the veteran;
(2) Will permit instruction in all aspects of the management and operation of a farm of the type for which the veteran is being trained; and
(3) Meets the requirements of paragraph (a) of this section.
(d) Employer agreement. VA may approve a farm on which a veteran is to train to become a farm manager only if the employer-trainer agrees:
(1) To instruct the veteran in various aspects of farm management in accordance with the individual's plan;
(2) To pay the veteran for each successive period of training a salary or wage rate:
(i) Commensurate with the value of the veteran's productive labor; and
(ii) Not less than that customarily paid to a nonveteran trainee in the same or similar training situation in that community; and
(3) To employ the veteran as a manager of the farm on which he or she is being trained if his or her conduct and progress remain satisfactory, or assure that the veteran will be employed as manager of a specified comparable farm.
§ 21.299   Use of Government facilities for on-job training or work experience at no or nominal pay.
(a) Types of facilities which may be used to provide training. Notwithstanding any other provision of regulations governing chapter 31, the facilities of any agency of the United States or of any State or local government receiving Federal financial assistance may be used to provide training or work experience at no or nominal pay as all or part of the veteran's program of vocational training under §§ 21.123, 21.294, and 21.296 of this part. The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) and case manager must determine that the training work experience is necessary to accomplish vocational rehabilitation and providing such training or work experience is in the best interest of the veteran and the Federal government.
(b) Employment status of veterans. (1) While pursuing on-job training or work experience in a facility of the United States, a veteran:
(i) Shall be deemed to be an employee of the United States for the purposes of benefits under chapter 81, title 5 U.S.C.; but
(ii) Shall not be deemed an employee of the United States for the purpose of laws administered by the Office of Personnel Management.
(2) While pursuing on-job training or work experience in a State or local government agency the veteran shall have the employment status and rights comparable to those provided in paragraph (b)(1) of this section for a veteran pursuing on-job training or work experience at a Federal agency.
(c) Terms applicable to training in State and local government. (1) The term State means each of the several States Territories, any possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(2) The term local government agency means an administrative subdivision of a government including a county, municipality, city, town, township, public authority, district, school district, or other such agency or instrumentality of a local government.
(3) The term Federal financial assistance means the direct or indirect provision of funds by grant, loan, contract, or any other arrangement by the Federal government to a State or local government agency.
(d) Additional considerations in providing on-job training and work experience in State and local government agencies. (1) The veteran's progress and adjustment in a rehabilitation program conducted wholly or in part at a State or local government agency shall be closely monitored by Veteran Readiness and Employment (VR&E) staff members to assure that:
(i) Training and rehabilitation services are provided in accordance with the veteran's rehabilitation plan. The plan shall provide for:
(A) Close supervision of the veteran's progress and adjustment by the case manager during the period he or she is at the State or local government agency; and
(B) The employer's periodic certification (not less than once every three months) that the veteran's progress and adjustment are in accordance with the program which has been jointly developed by VA, the veteran and the employer; and
(ii) The veteran achieves his or her employment goal.
(2) Training may not be provided for a position which involves religious or political activities;
(3) The veteran's training:
(i) Will not result in the displacement of currently employed workers; and
(ii) Will not be in a job while another person is laid off from a substantially equivalent job, or will not be in a job the opening for which was created as a result of the employer having terminated the employment of any regular employee or otherwise having reduced its workforce with the intention of using the opening for a Chapter 31 trainee.
§ 21.310   Rate of pursuit of a rehabilitation program.
(a) Programs offered at educational institutions. This section provides policy for determining the full-time and part-time rate of pursuit of a rehabilitation program by a veteran whose ability to pursue a program has not been reduced by the effects of disability.
(1) Measuring full and part-time training. VA will measure the full-time and part-time rate of pursuit of training offered at educational institutions according to the criteria found in §§ 21.4270 through 21.4275, except as provided in paragraphs (a) (2) and (3) of this section.
(2) Independent study course. (i) For certain seriously disabled veterans described in subdivision (i)(A) of this subparagraph VA may measure the veteran's enrollment:
(A) In an independent study course as half-time or greater training, or
(B) Both in independent study subjects and subjects requiring class attendance on the basis of the combined training load when the number of credit hours of independent study equals or exceeds the number of other credit hours.
(ii) To qualify for measurement described in paragraph (a)(2)(i) of this section:
(A) The seriously disabled veteran must have a disability or circumstances which preclude regular attendance at an institution of higher learning, and
(B) Independent study must be a sound method for providing the training necessary for restoring the veteran's employability.
(iii) In all other cases VA will measure independent study according to the provisions of § 21.4280.
(3) Special school. If training is pursued in a special school, such as those for persons with visual or hearing disabilities, the rate of pursuit will be measured under §§ 21.2470 through 21.4275 unless it is the established policy of the school to measure the rate of pursuit for full-time or particular level or part-time training based upon fewer semester, credit, or clock hours of attendance than prescribed in these regulations.
(4) Farm cooperative. If training in a farm cooperative program is provided by an educational institution, the rate of pursuit shall be determined the same as under § 21.4270 for that type of training.
(5) Course offered under contract. When a school or other entity furnishes all or part of a vocational rehabilitation program under contact with another school, VA will measure the course or courses as appropriate for the school or other entity actually providing the training.
(b) Education or training not furnished by an educational institution. The following types of training which are not furnished by an educational institution (§ 21.35(k)(3) may only be pursued full-time:
(1) On-job training. Full-time training in an on-job program is the lesser of the number of hours in the prevailing workweek for:
(i) Journeyman employees in the same job categories at the establishment where training is being provided;
(ii) Other persons in on-job training for the same or similar occupations at the facility where the veteran is training or at other facilities in the locality.
(2) Farm cooperative training. If training in a farm cooperative program is provided by an individual instructor, the full-time rate of pursuit must meet the requirements of § 21.126.
(3) Independent instructor. The full-time rate of pursuit for a veteran in an independent instructor program must meet the requirements of § 21.146.
(4) Training in the home. The full-time rate for a training program provided in the veteran's home must meet the requirements of § 21.146.
(5) Vocational course in a rehabilitation facility or sheltered workshop. A vocational course of training offered by a rehabilitation facility or sheltered workshop (§ 21.35(k) (5) and (6)), will be measured under provisions of § 21.4270(b) for trade or technical nonaccredited courses, unless it is the established policy of the facility to measure the rate of pursuit for full-time or a particular level of part-time training based upon fewer clock hours of attendance than provided in that regulation.
(c) Combination and cooperative programs. The rate of pursuit of a program which combines institutional training and on job training will be measured as follows:
(1) The institutional part will be assessed under §§ 21.4270 through 21.4275, and
(2) The on-the-job part will be assessed under paragraph (b)(1) of this section.
(d) Rehabilitative services. Measurement of the rate of pursuit for veterans in programs consisting primarily of services designed to evaluate and improve physical and psychological functioning will be assessed under this paragraph.
(1) The services assessed under this paragraph include:
(i) Evaluation and improvement of the rehabilitation potential of a veteran for whom attainment of a vocational goal is reasonably feasible;
(ii) Extended evaluation to determine whether attainment of a vocational goal is reasonably feasible; or
(iii) A program of independent living services to enable a veteran to function more independently in his or her family and community when attainment of a vocational goal is not reasonably feasible.
(2) Measurement of the rate of pursuit for services and programs named in paragraph (d)(1) of this section will be:
(i) As provided in paragraph (a) of this section for services furnished by educational institutions; or
(ii) According to the noneducational facility's customary criteria for full-time and part-time pursuit. If the facility does not have established criteria for full-time and part-time pursuit, or services are being provided by more than one facility, the rate of pursuit will be assessed in the following manner:
1 Extended evaluation and independent living.
§ 21.312   Reduced work tolerance.
(a) General. VA will consider that a veteran with reduced work tolerance is pursuing a rehabilitation program full-time when the amount of time the veteran is devoting to his or her program is as great as the effects of his or her disability (service and nonservice-connected) will permit.
(b) Pursuit of a program. A veteran with reduced work tolerance may pursue a rehabilitation program when the following conditions are met:
(1) Reduced work tolerance has been determined.
(2) Achievement of the goals of the program are reasonably feasible;
(3) The IWRP (Individualized Written Rehabilitation Plan) or other plan provides for completion of the program under Chapter 31.
(c) Redetermination of work tolerance. As necessary, but not less than once yearly, the veteran's work tolerance will be reevaluated. The rate of pursuit required to meet the standard of full-time pursuit will be modified if there is either an increase or decrease in the work tolerance of the veteran.
(d) Payment of allowance. A veteran with a reduced work tolerance will be paid a subsistence allowance, at the full-time rate for the type of program being pursued, when the veteran meets the standard for full-time pursuit established for him or her in the Plan. A veteran with reduced work tolerance, who elects benefits at the Chapter 34 rate, will have to meet normal attendance requirements for that chapter, however.
(e) Determining work tolerance. A VA physician will make all determinations and redeterminations of work tolerance.
§ 21.314   Pursuit of training under special conditions.
A veteran is required to pursue a rehabilitation program at a rate which meets the requirement for full- or part-time participation described in §§ 21.310 and 21.312. However, a veteran may pursue a rehabilitation program at a lesser rate, if such pursuit is a part of the veteran's plan. Subsistence allowance is not payable during such periods.
§ 21.320   Awards for subsistence allowance and authorization of rehabilitation services.
Awards providing for payment of a subsistence allowance and authorization of services necessary for rehabilitation may be prepared when an IWRP (Individualized Written Rehabilitation Plan) or other plan has been completed and other requirements for entrance or reentrance into a rehabilitation program have been met.
(a) Commencing date of subsistence allowance. The commencing date of an award of subsistence allowance will be determined under the provisions of § 21.322.
(b) Commencing date of authorization of training and rehabilitation services. The commencing date for authorization of training and rehabilitation services is the same as the effective date for awards for subsistence allowance under provisions of § 21.322, except when:
(1) The commencing date for authorization of a program of employment services is determined under provisions of § 21.326;
(2) An earlier commencement date is established in the veteran's plan or the veteran is entitled to earlier induction under § 21.282;
(3) The veteran elects payment at the educational assistance allowance rate, in which case the commencing date of payment is determined under provisions applicable to commencement of payment under Chapter 30.
(c) Ending date of subsistence allowance. The ending date of an award for subsistence allowance will be the earliest of the following dates:
(1) The ending date provided in the veteran's IWRP or other plan;
(2) The ending date of a period of enrollment as certified by a training or rehabilitation facility;
(3) The ending date specified in § 21.324.
(d) Ending date for training and rehabilitation services. The ending date of training and rehabilitation services will be the same as the termination date for subsistence allowance under paragraph (c) of this section, except when:
(1) The ending date for a period of employment services is determined under provisions of § 21.326;
(2) A later termination date is established in the veteran's plan;
(3) A veteran has elected payment at the educational assistance rate paid under Chapter 30. The ending date of the award is determined under regulations applicable to termination of training under Chapter 30.
§ 21.322   Commencing dates of subsistence allowance.
(a) General. VA will determine the commencing date of an award or increased award of subsistence allowance under this section. VA will not authorize subsistence allowance for any period prior to the earliest date for which disability compensation is payable or would be payable but for the veteran's receipt of retired pay.
(b) Entrance or reentrance into vocational rehabilitation, extended evaluation, independent living services. Except in the case of retroactive induction into a rehabilitation program, as provided in § 21.282, the commencing date of an award of subsistence allowance shall be the earlier of:
(1) The date the facility requires the veteran to report for prescribed activities; or
(2) The date training or rehabilitation services begin.
(c) Increases for dependents —(1) Dependency exists at the time of entrance or reentrance into a rehabilitation program. A veteran may have one or more dependents on or before the date he or she enters or reenters a rehabilitation program. When this occurs, the following rules apply:
(i) The effective date of the increase will be the date of entrance or reentrance if:
(A) VA receives the claim for the increase within one year of the date of entrance or reentrance; and
(B) VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period of submission of the evidence is adjusted in accordance with § 21.32 of this part.
(ii) The effective date of the increase will be the date VA receives notice of the dependents existence if:
(A) VA receives the claim for the increase more than one year after the date of entrance or reentrance; and
(B) VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part;
(iii) The effective date of the increase will be the date VA receives all necessary evidence if that evidence is received more than one year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(2) Dependency arises after entrance or reentrance into a rehabilitation program. If the veteran acquires a dependent after he or she enters or reenters a rehabilitation program, the increase will be effective on the latest of the following dates:
(i) Date of claim. This term means the following listed in order of their applicability:
(A) Date of the veteran's marriage, or birth of his or her child, or his or her adoption of a child, if the evidence of the event is received within one year from the date of the event;
(B) Date notice is received of the dependents's existence if evidence is received within 1 year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(C) Date VA receives evidence of the dependent's existence if this date is more than one year after VA requested this evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of the time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(ii) Date dependency arises —(3) Increased award not permitted. No increased award for dependency may be paid prior to the date the law permits benefits for dependents generally.
(d) Correction of military records. In accordance with the facts found, but not earlier than the date the change, correction, or modification was made by the service department, if eligibility of a veteran arises as the result of correction or modification of military records under 10 U.S.C. 1552, or change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other competent military authority.
(e) Bar to benefits removed by VA. In accordance with the facts found, but not earlier than the date the change was made by VA, if eligibility of a veteran arises as the result of review of the evidence of record regarding the character of discharge by VA, when the veteran's discharge or dismissal was a bar to benefits under 38 U.S.C. 5301.
(f) Incarcerated veterans. (1) Date of release from Federal, State, or local penal institution of a veteran incarcerated for conviction of a felony.
(2) Earlier of the following dates in the case of a veteran residing in a half-way house or participating in a work-release program as a result of a felony conviction.
(i) Date of release from the half-way house or work-release program, or
(ii) Date a veteran becomes obligated to pay part of his or her living expenses.
(g) Temporary 100 percent award terminated. Date of reduction of a temporary award of disability compensation at the 100 percent rate because of hospitalization.
(h) Liberalizing laws and VA issues. In accordance with facts found, but not earlier than the date of the act or administrative issue.
See § 21.260(c) for definition of dependents.
§ 21.324   Reduction or termination dates of subsistence allowance.
(a) General. The effective date of the reduction of the amount paid or termination of payment of subsistence allowance will be the earliest of the dates specified in this section. If an award is reduced, the reduced rate will be effective the day following the date of termination of the greater benefit.
(b) Death of a veteran. Date of death, if death occurs while the veteran is in attendance or authorized leave status; otherwise date of last attendance.
(c) Death of a dependent. (1) Before October 1, 1982. Last day of the calendar year in which death occurs, unless the veteran's program is terminated earlier under other provisions.
(2) After September 30, 1982. Last day of the month in which death occurs unless discontinuance is required at an earlier date under other provisions.
(d) Divorce —(1) Before October 1, 1982. Last day of the calendar year in which divorce occurs, unless the veteran's program is terminated earlier under other provisions.
(2) After September 30, 1982. Last day of the month in which divorce occurs unless discontinuance is required at an earlier date under other provisions.
(e) Child —(1) Marriage —(i) Before October 1, 1982. Last day of the month in which the marriage occurs, unless the veteran's program is terminated earlier under other provisions.
(ii) After September 30, 1982. Last day of the month in which the marriage occurs, unless discontinuance is required at an earlier date under other provisions.
(2) Age 18. Day preceding the child's 18th birthday.
(3) School attendance.
(i) Last day of the month in which the child ceases attending school; or
(ii) The day preceding the child's 23rd birthday, whichever is earlier.
(4) Helplessness. Last day of the month in which 60 days has passed from VA's notice to the payee that the child's helplessness has ceased.
(f) Interrupted, rehabilitation to the point of employability, independent living program completed, and extended evaluation completed status. Last day of attendance, or approved leave status, whichever is applicable.
(g) Discontinued. Last day of attendance or approved leave status, whichever is applicable, except as follows:
(1) If VA places the veteran in “discontinued” status following the veteran's withdrawal from all courses with nonpunitive grades or following his or her completion of all courses with nonpunitive grades and the case manager does not find mitigating circumstances, VA will terminate subsistence allowance effective:
(i) The first date of the term, or
(ii) December 1, 1976, whichever is later.
(2) If VA places the veteran in “discontinued” status following a term in which the grades the veteran receives include both those that count in the grade point average and nonpunitive grades, and the case manager does not find mitigating circumstances:
(i) VA will terminate subsistence allowance for courses in which the veteran receives nonpunitive grades effective the first day of the term or December 1, 1976, whichever is later.
(ii) VA will terminate subsistence allowance for courses in which the veteran receives grades that will count in the grade point average effective the veteran's last day of attendance or approved leave status, whichever is applicable.
(h) Wages or salary received in apprentice or on-job training. (1) If the sum of the training wage plus the scheduled subsistence allowance is more than the journeyman wage when the training commences, the subsistence allowance will be decreased by VA effective the first day of the second month following the month in which the veteran enters on-job training.
(2) Subsequent adjustments will be effective the first day of the second month following the month in which wages or salary changes are made which justify the adjustment under provisions of § 21.266(e).
(i) Reduction in rate of pursuit of the program. End of month in which reduction occurs, except that if the rate of pursuit is reduced as a result of the veteran's withdrawal from a unit course or courses with nonpunitive grade(s) or as a result of the veteran's completion of a unit course or courses with nonpunitive grade(s) (§ 21.4200(j)), VA will reduce subsistence allowance as follows:
(1) If it is determined that there are mitigating circumstances:
(i) Withdrawal with nonpunitive grades: The end of the month or the end of the term in which the veteran withdraws, whichever is earlier; if the reduction occurs at the beginning of the term benefits will be reduced the first day of the term in which the veteran withdraws.
(ii) Completion with nonpunitive grades. No reduction required.
(2) If it is determined there are no mitigating circumstances VA will reduce the veteran's subsistence allowance effective the first day of the term in which the veteran withdraws or which the veteran completes with nonpunitive grades. The term mitigating circumstances means circumstances beyond the veteran's or serviceperson's control which prevent him or her from continuously pursuing a rehabilitation program. The following circumstances are representative of those which are considered mitigating.
(i) An illness of the program participant;
(ii) An illness or death in the program participant's family;
(iii) An unavoidable change in the veteran's conditions of employment;
(iv) An unavoidable geographical transfer resulting from the veteran's employment;
(v) Immediate family or financial obligations beyond the control of the veteran which are found by VA to require the veteran to suspend pursuit of the rehabilitation program;
(vi) Discontinuance of the course by the educational institution;
(vii) In the first instance of withdrawal on or after June 1, 1989 by a program participant from a course or courses with respect to which such veteran has been paid subsistence allowance under the provisions of § 21.260(b), mitigating circumstances shall be considered to exist with respect to courses totaling not more than six semester hours or the equivalent thereof;
(viii) Difficulties in obtaining child care or changes in such arrangements which are beyond the control of the program participant and which require interruption of the rehabilitation program is order for the participant to provide or arrange for such care.
(j) Severance of service-connection. Last day of the month in which the severance becomes final.
(k) Fraud. The later of the following dates:
(1) The beginning date of the award of subsistence allowance, or
(2) The day preceding the date of the fraudulent act.
(l) Error —(1) Payee error. Effective date of the award of subsistence allowance or day preceding the act, whichever is later, but not prior to the date the veteran's entitlement ceases, on an erroneous award based on an act of commission or omission by a payee with his or her knowledge.
(2) Administrative error. Except as provided in paragraph (j) of this section, date of last payment on an erroneous award based solely on administrative error or an error in judgment by a VA employee.
(m) Treasonable acts, subversive activities. The later of the following dates:
(1) Beginning date of the award of subsistence allowance, or
(2) Day preceding the date of commission of the treasonable act or subversive activities for which the veteran is convicted.
(n) Incarceration in prison or jail —(1) Felony conviction. If a veteran's subsistence allowance must be reduced because of incarceration for a felony conviction under provisions of § 21.276, his or her rate of payment will be reduced the later of:
(i) The date of his or her incarceration in a prison or jail; or
(ii) The commencing date of his or her award as determined by § 21.322.
(2) Halfway house or work-release program. The subsistence allowance of a veteran in a halfway house or work release program as a result of conviction of a felony will not be reduced under the provisions of § 21.276 the date on which the Federal Government or a State or local government pays all of the veteran's living expenses.
(o) Specialized rehabilitation facility. Date payment for room and board by VA begins, reduce the rate paid to the amount payable for dependents.
(p) Termination of subsistence allowance while hospitalized at VA expense. Date before the beginning date of the increased disability compensation award, which results in a reduced subsistence allowance under the provisions of § 21.266.
§ 21.326   Authorization of employment services.
(a) General. Authorization of employment services shall be based upon the services identified and goals established in an IEAP (Individualized Employment Assistance Plan) under provisions of § 21.88. The effective dates for the commencement, or termination of such services will be determined under this section.
(b) Commencing date. The commencing date authorizing a period of employment services will be the later of:
(1) The date following completion of the period of rehabilitation to the point of employability; or
(2) The date of the original IEAP.
(c) Termination of the authorization of employment services. Authorization for employment services will be terminated the earliest of:
(1) The last day employment services are provided under the terms of an IEAP when employment services are interrupted, discontinued, or the veteran is rehabilitated;
(2) The date the authorization is found to be erroneous because of an act of omission or commission by the veteran, or with his or her knowledge;
(3) The last day of the month in which severance of service connection becomes final;
(4) The day proceding the date of a fraudulent act;
(5) The date preceding the commission of a treasonable or subversive act for which the veteran is convicted.
§ 21.328   Two veteran cases—dependents.
If both partners in a marriage are veterans, and if each is receiving either subsistence allowance for a vocational rehabilitation program or an educational assistance allowance under another VA program, each is entitled to receive the additional allowances payable for each other and for their children.
§ 21.330   Apportionment.
(a) General. Where in order, VA will apportion subsistence allowance in accordance with § 3.451 of this title, subject to the limitations of § 3.458 of this title. If the veteran is in receipt of benefits at the Chapter 30 rate, VA will not apportion these benefits.
(b) Effective date. The effective date of apportionment will be as prescribed in § 3.400(e) of this title.
(c) Child adopted out of family. Where evidence establishes that a veteran is the natural parent of a child or children legally adopted outside of the veteran's family, VA will apportion in favor of the child or children only that additional amount of subsistence allowance payable on account of the existence of the child or children. The veteran is not entitled in his or her own right to the additional amount of subsistence allowance payable for the child because of the existence of the child unless the veteran is contributing to the child's support.
(d) Veteran convicted of a felony. The subsistence allowance of a veteran in a rehabilitation program after October 17, 1980, may not be apportioned if the veteran is incarcerated because of conviction for a felony.
§ 21.332   Payments of subsistence allowance.
(a) Eligibility. At the end of the month, VA shall pay to an eligible veteran enrolled in a rehabilitation program, subsistence allowance at the rates specified in § 21.260 for the type of program pursued during the month, unless advance payment is approved. VA will continue payments during those intervals described in § 21.270.
(b) Advance payment criteria. VA will make an advance payment of subsistence allowance only when:
(1) The veteran specifically requests an advance payment; and
(2) The educational institution at which the veteran is accepted or enrolled has agreed to, and can carry out, satisfactorily, the provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to:
(i) Receipt, delivery or return of advance checks; and
(ii) Certifications of delivery and enrollment.
(c) Advance payment. (1) The amount of advance payment is not to exceed:
(i) The veteran's subsistence allowance for the month or part of a month in which his or her course will begin; plus
(ii) The veteran's subsistence allowance for the following month.
(2) Upon application and completion of arrangements for enrollment of a veteran who meets the criteria for an advance payment, VA shall mail a check payable to the veteran to the institution for delivery to the veteran upon registration.
(3) An institution shall not deliver an advance payment check to a veteran more than 30 days in advance of commencement of his or her program.
(d) Certification for advance payment. VA will authorize advance payment upon receipt of the institution's certification of the following information:
(1) The veteran is eligible for benefits;
(2) The institution has accepted the veteran or he or she is eligible to continue his or her training;
(3) The veteran has notified the institution of his or her intention to attend or to reenroll;
(4) The number of semester or clock hours the veteran will pursue; and
(5) The beginning and ending dates of the enrollment period.
(e) Time of advance payment. VA will authorize advance payment only:
(1) At the beginning of an ordinary school year; or
(2) At the beginning of any other enrollment period which begins after a break in enrollment of one full calendar month or longer.
(f) Other payments. (1) VA will make all payments other than advance payments at the end of the month for the veteran's training during that month.
(2) VA may withhold final payment until:
(i) VA receives certification that the veteran has completed his or her course; and
(ii) VA makes all necessary adjustments in the veteran's award resulting from that certification.
(g) Payments for courses which are repeated. VA may pay subsistence allowance to a veteran who repeats a course under conditions described in § 21.132.
§ 21.334   Election of payment at the Chapter 30 rate.
(a) Election. When the veteran elects payment of an allowance at the chapter 30 rate, the effective dates for commencement, reduction and termination of the allowance shall be in accordance with §§ 21.7130 through 21.7135 and § 21.7050 under chapter 30.
(b) Election of payment at the Chapter 30 rate subsequent to induction into a rehabilitation program. Election of payment at the Chapter 30 rate subsequent to induction into training is permissible under provisions of § 21.264 (a) and (b). The effective date of the election is the latest of the following dates:
(1) The commencing date determined under § 21.7131 in the case of a veteran who has elected payment at the chapter 30 rate; or
(2) The day following the end of the period for which VA paid tuition, fees or other program charges under this Chapter.
(c) Reelection of subsistence allowance subsequent to induction. If a veteran reelects subsistence allowance under provisions of § 21.264(b) of this part, the effective date of change is earliest of the following:
(1) The date following completion of the term, semester, quarter, or other period of instruction in which the veteran is currently enrolled;
(2) The veteran's Chapter 30 delimiting date;
(3) The day after exhaustion of Chapter 30 entitlement; or
(4) The day following the date of a VA determination that failure to approve reelection would prevent the veteran from continuing the rehabilitation program.
(d) Election or reelection during leave or between periods of instruction —(1) Payment at the Chapter 30 rate. If an otherwise eligible veteran elects payment at the Chapter 30 rate during a period between periods of instruction, the effective date of the election shall be the first day of the next period of instruction.
(2) Subsistence allowance. If an otherwise eligible veteran reelects subsistence allowance during leave or between periods of instruction following election of payment at the Chapter 30 rate, the effective date of the change will be the date of the reelection or the beginning of the next period of training, whichever is to the veteran's benefit.
(e) Effect of Chapter 34 program termination. (1) Since Chapter 34 benefits are not payable beyond December 31, 1989, any previous election of benefits at that rate is terminated as of that date;
(2) A veteran entitled to chapter 30 benefits based on his or her chapter 34 eligibility as of December 31, 1989, and whose election of chapter 34 rates terminated as of the date under paragraph (e)(1) of this section must, if the individual desires payment at the chapter 30 rate, elect such payment.
§ 21.340   Introduction.
(a) General. VA may approve leaves of absence under certain conditions. During approved leaves of absence, a veteran in receipt of subsistence allowance shall be considered to be pursuing a rehabilitation program. Leave may be authorized for a veteran during a period of:
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; or
(3) Independent living services.
(b) Election of subsistence allowance. If a veteran elects to receive subsistence allowance and payment of rehabilitation services by VA, he or she may be authorized leave of absence under §§ 21.342 through 21.350.
(c) Election of benefits at the chapter 30 rate. If a veteran elects to receive a subsistence allowance paid at the chapter 30 rate, the effect of absences is determined under §§ 21.7139 and 21.7154.
§ 21.342   Leave accounting policy.
(a) Amount of leave. A veteran pursuing one of the programs listed in § 21.340(a) may be authorized up to 30 days of leave by the case manager during a twelve-month period. The beginning date of the first twelve-month period is the commencing date of the original award, and the ending date is twelve months from the beginning date, with subsequent twelve-month periods running consecutively thereafter.
(b) Additional leave under exceptional circumstances. A veteran in a program may be authorized up to 15 additional days of leave during the twelve-month period by the case manager under exceptional circumstances, such as extended illness or family problems.
(c) Absence. For the purpose of determining when a leave of absence may be authorized, a veteran who elects subsistence allowance shall be considered absent during any period in which he or she is:
(1) Not in attendance under the rules and regulations of the educational institution, rehabilitation center, or sheltered workshop;
(2) Not considered at work under the rules of the training establishment; or
(3) Not present at a scheduled period of individual instruction.
(d) System of records. An educational institution, training establishment, rehabilitation center, or other facility or individual providing training and rehabilitation services under Chapter 31 may utilize the same system of records to determine absence as the one used for similarly circumstanced nonveterans.
(e) Change in rate of pursuit. The amount of approved leave is not affected by the veteran's rate of pursuit of a rehabilitation program.
(f) Charging leave. VA shall charge 1 day of leave for each day or part of a day of absence from pursuit of a rehabilitation program.
(g) Limitation on carrying leave over to another period. The veteran may not carry over unused days of leave from one twelve-month period to another.
§ 21.344   Facility offering training or rehabilitation services.
(a) Approval of leaves of absence required. Leaves of absence normally must be approved in advance by the case manager when the facility offering training or rehabilitation services arranges for the leave. The approval of the case manager is required:
(1) During periods in a rehabilitation program identified in § 21.342(c); or
(2) A period of hospitalization at VA expense during one of the periods identified in § 21.342(c).
(b) Responsibility of the veteran in obtaining leave. VA will not authorize leave without a verbal or written request by the veteran, and the approval of the facility.
(c) Conditions permitting approval of leaves of absence. (1) The case manager may approve leaves of absence up to a total of 30 days during a twelve-month period if the facility certifies that the use of the leave does not interfere materially with the veteran's progress;
(2) An additional period of up to 15 days of leave in the same twelve-month period under exceptional circumstances may be approved by the case manager if failure to approve leave will:
(i) Result in personal hardship, or
(ii) Adversely affect the veteran's ability to continue in his or her rehabilitation program.
§ 21.346   Facility temporarily not offering training or rehabilitation services.
(a) Approval of leave of absence not required. A veteran may receive subsistence allowance, during a period when the facility temporarily is not offering services, without the veteran's being charged with leave when:
(1) The facility is closed temporarily under an executive order of the President or due to an emergency situation;
(2) The veteran is pursuing on-job training and he or she receives holidays established by Federal or State law;
(3) The veteran is pursuing farm cooperative training and is required in the ordinary day to day conduct of farm business to be absent:
(i) From the farm; or
(ii) From that part of a farm cooperative course which is given at the educational institution.
(4) The veteran is pursuing a standard college degree; and
(i) There is an interval between consecutive semesters, terms, quarters or periods of instruction within a certified enrollment period which does not exceed a full calendar month;
(ii) There is an interval, which does not exceed a full calendar month between semesters, terms or quarters when the educational institution only certifies enrollment on a semester, term, or quarter basis; or
(iii) There is an interval, which does not exceed 30 days, when the veteran, as part of his or her approved program of vocational rehabilitation, transfers from one educational institution to another for the purpose of enrolling in and pursuing a similar program at the second institution;
(5) The veteran is pursuing a non-college-degree course and there is a period of up to 5 days per twelve-month period during which the school offering non-college-degree courses is not operating, because instructors are attending professional meetings.
(b) Case manager responsibility. The case manager may disapprove leave under paragraph (a)(4) of this section if:
(1) Approval would result in or lead to use of more than 48 months of entitlement under Chapter 31, alone; or
(2) Approval would require extension of the scheduled completion date of the veteran's program.
(c) Approval of leaves of absence required. A veteran, who wishes to receive subsistence allowance while the facility temporarily is not offering training under conditions other than those identified in paragraph (a) of this section, must seek an approved leave of absence and be charged leave.
§ 21.348   Leave following completion of a period of training or rehabilitation services.
(a) Leave following completion of training or rehabilitation services. Leave may not be approved following completion of a period of rehabilitation services described in § 21.340(a).
(b) Postponement of the date of completion of a period of rehabilitation services prohibited. The date of completion of the veteran's program may not be extended for the purpose of allowing the veteran to use leave.
§ 21.350   Unauthorized absences.
A veteran who is unable to obtain an authorized leave of absence in advance may seek to have the unauthorized absence excused.
(a) Excusing unauthorized absences. VA may excuse an unauthorized absence and make proper charges against the veteran's leave when:
(1) The veteran has absented himself or herself when advance approval from VA is impracticable; and
(2) Conditions for approval of leave are otherwise met.
(b) Unexcused, unauthorized absences. When an unauthorized absence is not satisfactorily explained, VA will take necessary action, including recoupment of subsistence allowance for that period of absence.
§ 21.362   Satisfactory conduct and cooperation.
(a) General. The successful development and implementation of a program of rehabilitation services require the full and effective participation of the veteran in the rehabilitation process.
(1) The veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitation services under Chapter 31;
(2) The staff is responsible for insuring satisfactory conduct and cooperation on the veteran's part; and
(3) VA staff shall take required action when the veteran's conduct and cooperation are not satisfactory. (See § 21.364)
(b) VA responsibility. VA shall make a reasonable effort to inform the veteran and assure his or her understanding of:
(1) The services and assistance which may be provided under Chapter 31 to help the veteran maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process, especially counseling services;
(2) Other services which Veteran Readiness and Employment (VR&E) staff can assist the veteran in securing through non-VA programs; and
(3) The specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation.
(c) Veteran's responsibility. A veteran requesting or being provided services under Chapter 31 must:
(1) Cooperate with VA staff in carrying out the initial evaluation and developing a rehabilitation plan;
(2) Arrange a schedule which allows him or her to devote the time needed to attain the goals of the rehabilitation plan;
(3) Seek the assistance of VA staff, as necessary, to resolve problems which affect attainment of the goals of the rehabilitation plan;
(4) Conform to procedures established by VA governing pursuit of a rehabilitation plan including:
(i) Enrollment and reenrollment in a course;
(ii) Changing the rate at which a course is pursued;
(iii) Requesting a leave of absence;
(iv) Requesting medical care and treatment;
(v) Securing supplies; and
(vi) Other applicable procedures.
(5) Conform to the rules and regulations of the training or rehabilitation facility at which services are being provided.
(d) Responsibility for determining satisfactory conduct and cooperation. VR&E staff with case management responsibility in the veteran's case will:
(1) Monitor the veteran's conduct and cooperation as necessary to assure consistency with provisions of paragraph (c) of this section.
(2) Provide assistance which may be authorized under Chapter 31, or for which arrangements may be made under other programs to enable the veteran to maintain satisfactory conduct and cooperation.
§ 21.364   Unsatisfactory conduct and cooperation.
(a) General. If VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are found not reasonably likely to be effective, discontinue services and assistance to the veteran, unless the case manager determines that mitigating circumstances exist. In any case in which such services and assistance have been discontinued, VA may reinstitute such services and assistance only if the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) determines that:
(1) The unsatisfactory conduct or cooperation of such veteran will not be likely to recur; and
(2) The rehabilitation program which the veteran proposes to pursue (whether the same or revised) is suitable to such veteran's abilities, aptitudes, and interests.
(b) Unsatisfactory conduct or cooperation exists. When the case manager determines that the veteran's conduct and/or cooperation are not in conformity with provisions of § 21.362(c), the case manager will:
(1) Discuss the situation with the veteran;
(2) Arrange for services, particularly counseling services, which may assist in resolving the problems which led to the veteran's unsatisfactory conduct or cooperation;
(3) Interrupt the program to allow for more intense efforts, if the unsatisfactory conduct and cooperation persist. If a reasonable effort to remedy the situation is unsuccessful during the period in which the program is interrupted, the veteran's case will be discontinued and assigned to “discontinued” status unless mitigating circumstances are found. When mitigating circumstances exist the case may be continued in “interrupted” status until VA staff determines the veteran may be reentered into the same or a different program because the veteran's conduct and cooperation will be satisfactory, or if a plan has been developed, to enable the veteran to reenter and try to maintain satisfactory conduct and cooperation. Mitigating circumstances include:
(i) The effects of the veteran's service and nonservice-connected condition;
(ii) Family or financial problems which have led the veteran to unsatisfactory conduct or cooperation; or
(iii) Other circumstances beyond the veteran's control.
§ 21.370   Intraregional travel at government expense.
(a) Introduction. VA may authorize transportation expenses for intraregional travel to a veteran in a rehabilitation program or a program of employment services for the purposes presented in paragraph (b) of this section. When approved for purposes stated in paragraph (b) of this section, authorization of travel is limited to the veteran's transportation, and does not include transportation for the veteran's dependents, or for moving personal effects.
(b) Necessary condition for intraregional travel at government expense. VA may authorize a veteran to travel at government expense within the regional territory of the VA field station of jurisdiction when:
(1) VA determines that the travel is necessary in the discharge of the government's obligation to the veteran; and
(2) The veteran is instructed to travel for any of the following reasons:
(i) To report to the chosen school or training facility for the purpose of starting training;
(ii) To report to a prospective employer-trainer for an interview prior to induction into training, when there is definite assurance in advance of approving the travel that, upon interview, the employer will start the veteran in training, if the employer finds the veteran acceptable, or
(iii) To report to the chosen school for a personal interview prior to induction into training when:
(A) The school requires the interview as a condition of admission,
(B) There is assurance before the travel is approved that the veteran's records (school, counseling, etc.) show he or she meets all basic requirements for induction under § 21.282; and
(C) The veteran submits to the school a transcript of his or her high school credits and a transcript from any school he or she attended following high school.
(iv) To report to a rehabilitation facility or sheltered workshop;
(v) To return to his or her home from the training or rehabilitation facility when:
(A) Services are not available for a period of 30 days or more (including summer vacation periods), and
(B) Travel from his or her home to the training or rehabilitation facility was at government expense;
(vi) To return to the training or rehabilitation facility from his or her home, when:
(A) The purpose of the travel is to continue the rehabilitation program, and
(B) Travel from the training or rehabilitation facility to the veteran's home was at government expense;
(vii) To return to the point from which he or she was transported at government expense, upon being placed in “discontinued” or “interrupted” status for any reason, except abandonment of training by the veteran without good reason;
(viii) To report to a place of prearranged satisfactory employment upon completion of vocational rehabilitation for the purpose of beginning work;
(ix) To return to his or her home from the place of training following rehabilitation to the point of employability, when suitable employment is not available;
(x) To return from the place of training to the veteran's prior location, when VA could have approved travel to the place of training at government expense, but did not issue the necessary travel authorization; and
(xi) To report to a place to take a scheduled examination required to practice the trade or profession for which the veteran has been trained. This travel shall be limited to points within the state in which the veteran has pursued his or her training or, if the veteran returned to the state from which he or she was sent to pursue training, he or she may be sent at government expense to a place within that state to take the examination. If there is more than one place within the state at which the veteran may take the examination, travel shall be limited to the nearest place.
(c) Approval of intraregional transfer. Intraregional travel must be approved by the case manager.
§ 21.372   Interregional transfer at government expense.
(a) Introduction. A veteran may need to transfer from the jurisdiction of one VA facility to another in order to accomplish rehabilitation. This section states the conditions which will permit the transfer to be made at government expense. Authorization of travel is limited to the veteran's transportation, and does not include transportation for the veteran's dependents or for moving personal effects.
(b) Conditions which permit interregional transfers at government expense. A veteran may be provided travel at government expense when it has been determined that such travel is necessary to accomplish rehabilitation. VA will authorize an interregional transfer at government expense only to allow the veteran:
(1) To enter training in the nearest satisfactory facility if:
(i) The nearest satisfactory facility is within the jurisdiction of another VA facility; or
(ii) There are no satisfactory facilities within the jurisdiction of the facility in which the veteran resides.
(2) To enter training in the state in which the veteran has long-standing family and social ties, and in which he or she plans to live following rehabilitation;
(3) To report to an employer-trainer when all necessary steps have been taken to establish an on-job training program;
(4) To report to rehabilitation facility or sheltered workshop;
(5) To return to his or her home from the place of training when:
(i) Training is not available for a period of 30 days or more (including summer vacation periods), and
(ii) Travel from his or her home to the place of training or rehabilitation services was at government expense;
(6) To return to the place of training or rehabilitation services from his or her home, when;
(i) The purpose of the travel is to continue training or rehabilitation services; and
(ii) Travel from the place of training or rehabilitation services to the veteran's home was at government expense;
(7) To return to the point from which he or she was transferred at government expense, upon being assigned to “discontinued” or “interrupted” status, for any reason, except abandonment of training by the veteran without good reason;
(8) To report to a place of prearranged satisfactory employment or for a prearranged employment interview following completion of his or her program of vocational rehabilitation, when:
(i) There is no satisfactory opportunity for employment in the veteran's occupation within the jurisdiction of the facility which has jurisdiction over his or her residence, and
(ii) The veteran has a serious employment handicap.
(9) To return to his or her home, from which he or she was transferred at government expense to pursue training, when, upon completion of his or her course, satisfactory employment is not available;
(10) To return to the location from which he or she traveled without authorization because VA did not issue the necessary travel authorization on a timely basis.
(c) Approval of interregional transfer. Interregional travel must be approved by the case manager.
§ 21.374   Authorization for travel of attendants.
(a) Travel for attendants. The services of an attendant to accompany a veteran while traveling for rehabilitation purposes may be provided when such services are necessitated by the severity of the veteran's disability. Attendants may only be used to enable a veteran to attend appointments for initial evaluation, counseling, or intraregional or interregional travel at government expense under § 21.370 and § 21.372.
(b) Attendants not employed by the Federal government. (1) VA may authorize persons not in regular civilian employment of the Federal government to act as attendants. Payment of travel expenses for attendants will be authorized on the same basis as for the veteran the attendant is accompanying. VA:
(i) Will furnish the attendant with common-carrier transportation, meal and lodging expenses; or
(ii) Will grant the attendant a mileage allowance in lieu of furnishing the assistance cited in paragraph (b)(1)(i) of this section.
(2) VA will not pay the attendant a fee if he or she is a relative of the veteran. A relative, for this purpose, is a person who by blood or marriage is the veteran's
(i) Spouse,
(ii) Parent,
(iii) Child,
(iv) Brother,
(v) Sister,
(vi) Uncle,
(vii) Aunt,
(viii) Niece, or
(ix) Nephew.
(c) Attendant employed by the Federal government. (1) VA may authorize a person in the regular civilian employment of the Federal government to act as an attendant. When assigned, the attendant:
(i) Will be entitled to transportation and expenses, or
(ii) May be allowed per diem in place of subsistence in accordance with the provisions of the Federal Travel Regulations (5 U.S.C. Chapter 57).
(2) VA will pay no fee to civilian employees of the Federal government who act as attendants.
§ 21.376   Travel expenses for initial evaluation and counseling.
When VA asks a disabled veteran to report to a designated place for an initial evaluation, reevaluation or counseling (including personal or vocational adjustment counseling), the veteran will travel to and from the place of evaluation and counseling at government expense. When a veteran, because of a severe disability, requires the services of an attendant while traveling, VA will authorize payment of travel expenses for the attendant under the provisions of § 21.374.
§ 21.380   Establishment of qualifications for personnel providing assistance under Chapter 31.
(a) General. Notwithstanding any other provision of law or regulation, VA shall establish qualification standards for VBA personnel providing evaluation, rehabilitation, and case management services to eligible veterans under chapter 31, including:
(1) Counseling Psychologists (CP) or Vocational Rehabilitation Counselors (VRC);
(2) Vocational rehabilitation specialists; and
(3) Other staff providing professional and technical assistance.
(b) Rehabilitation Act of 1973. VA shall consider qualification standards established for comparable personnel under the Rehabilitation Act of 1973, when setting agency standards.
§ 21.382   Training and staff development for personnel providing assistance under Chapter 31.
(a) General. VA shall provide a program of ongoing professional training and development for staff of the Veteran Readiness and Employment (VR&E) Service engaged in providing rehabilitation services under chapter 31. The objective of such training shall be to insure that rehabilitation services for disabled veterans are provided in accordance with the most advanced knowledge, methods, and techniques available for the rehabilitation of disabled persons. The areas in which training and development services may be provided to enhance staff skills include:
(1) Evaluation and assessment:
(2) Medical aspects of disability;
(3) Psychological aspects of disability;
(4) Counseling theory and techniques;
(5) Personal and vocational adjustment;
(6) Occupational information;
(7) Placement processes and job development;
(8) Special considerations in rehabilitation of the seriously disabled;
(9) Independent living services;
(10) Resources for training and rehabilitation; and
(11) Utilizing research findings and professional publications.
(b) Training and development resources. For the purpose of carrying out the provisions of paragraph (a) of this section VA may:
(1) Employ the services of consultants;
(2) Make grants to and contract with public and private agencies, including institutions of higher learning, to conduct workshop and training activities;
(3) Authorize individual training at institutions of higher learning and other appropriate facilities; and
(4) Utilize chapter 41 of title 5, U.S.C., and related instructions to provide training and staff development activities on a group and individual basis.
(c) Interagency coordination. VA shall coordinate with the Commissioner of the Rehabilitation Services Administration and the Assistant Secretary for Veterans' Employment in planning and carrying out personnel training in areas of mutual programmatic concern.
§ 21.390   Rehabilitation research and special projects.
(a) General. VA shall carry out an ongoing program of activities for the purpose of advancing the knowledge, methods, techniques, and resources available for use in rehabilitation programs for veterans. For this purpose, VA may conduct research and development, provide support for research and development, or both conduct and provide support for the development and conduct of:
(1) Studies and research concerning the psychological, educational, social, vocational, industrial, and economic aspects of rehabilitation; and
(2) Projects which are designed to increase the resources and potential for accomplishing the rehabilitation of disabled veterans.
(b) Grants. VA may make grants to, or contract with, public on nonprofit agencies, including institutions of higher learning, to carry out the provisions of paragraph (a) of this section.
(c) Research by Veteran Readiness and Employment (VR&E) staff members. VA will encourage research by VR&E staff members. This research will address problems affecting service delivery, initiation and continuation in rehabilitation programs, and other areas directly affecting the quality of VR&E services to veterans.
(d) Interagency coordination. VA shall cooperate with the Commissioner of the Rehabilitation Services Administration and the Director of the National Institute of Handicapped Research in the Department of Education, the Assistant Secretary for Veterans' Employment in the Department of Labor, and the Secretary of Health and Human Services regarding rehabilitation studies, research, and special projects of mutual programmatic concern.
§ 21.400   Veterans' Advisory Committee on Rehabilitation.
(a) General. The Secretary shall appoint an advisory committee to be known as the Veterans' Advisory Committee on Rehabilitation.
(b) Purpose. The purposes of the Veterans' Advisory Committee on Rehabilitation, hereafter referred to as the committee, are to:
(1) Assess the rehabilitation needs of service and nonservice-disabled veterans; and
(2) Review the programs and activities of VA designed to meet such needs;
(c) Members. The committee shall include:
(1) Members of the general public;
(2) Appropriate representation of veterans with service-connected disabilities; and
(3) Persons who have distinguished themselves in the public and private sectors in the fields of rehabilitation, and employment and training programs.
(d) Members terms. The Secretary shall appoint members of the committee for three-year terms. Members may be reappointed for additional three-year terms.
(e) Chairperson. The Secretary will designate one of the members of the committee to chair the committee.
(f) Ex-officio members. The committee shall also include ex-officio members named by the following agencies. The ex-officio members shall include one representative from:
(1) The Veterans Health Services and Research Administration;
(2) The Veterans Benefits Administration;
(3) The Rehabilitation Services Administration and one from the National Institute for Handicapped Research of the Department of Education; and
(4) The Assistant Secretary of Labor for Veterans' Employment of the Department of Labor.
§ 21.402   Responsibilities of the Veterans' Advisory Committee on Rehabilitation.
(a) Consultation with the Secretary. The Secretary shall regularly, but not less than twice yearly, consult with and seek the advice of the committee with respect to the administration of veterans' rehabilitation programs authorized under Title 38, United States Code.
(b) Submission of an annual report. The committee shall:
(1) Submit to the Secretary an annual report on the rehabilitation programs and activities of the VA; and
(2) Submit such other reports and recommendations to the Secretary as the committee determines appropriate.
(c) Contents of the committee's annual report. The committee's annual report shall include:
(1) An assessment of the rehabilitation needs of veterans; and
(2) A review of the programs and activities of VA designed to meet needs identified in paragraph (c)(1) of this section.
(d) Secretary's annual report. The findings of the committee shall be incorporated in the Secretary's annual report submitted to the Congress under 38 U.S.C. 529. In addition the Secretary shall submit, together with this annual report, a copy of all reports and recommendations of the committee submitted to the Secretary since the previous annual report was submitted to the Congress.
§ 21.410   Delegation of authority.
The Secretary delegates authority to the Under Secretary for Benefits to make findings and decisions under 38 U.S.C. chapter 31 and regulations, precedents, and instructions that affect vocational rehabilitation services for disabled veterans. The Under Secretary for Benefits may further delegate this authority to supervisory and non-supervisory Veteran Readiness and Employment (VR&E) staff members.
§ 21.412   Finality of decisions.
(a) Facility of original jurisdiction. The decision of a VA facility in a given veteran's case:
(1) Will be final and binding upon all field stations of VA as to conclusions based on evidence on file at that time; and
(2) Will not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §§ 21.410 and 21.414.
(b) Adjudicative determinations. Current determinations of line of duty, character of discharge, relationship, and other pertinent elements affecting eligibility for training and rehabilitation services or payment of subsistence allowance under Chapter 31, made by an adjudicative activity by application of the same criteria and based on the same facts, are binding upon all other adjudicative activities in the absence of clear and unmistakable error.
§ 21.414   Revision of decision.
The revision of a decision on which an action is based is subject to the following regulations:
(a) Clear and unmistakable error, § 3.105(a);
(b) Difference of opinion, § 3.105(b);
(c) Character of discharge, § 3.105(c);
(d) Severance of service-connection, § 3.105(d);
(e) Reduction to less than compensable evaluation, § 3.105(e); (See §§ 21.48, 21.322, and 21.324)
(f) Review of decisions, § 21.416.
§ 21.416   Review of decisions.
(a) Applicability. This section applies where notice of a decision under this subpart or subpart M of this part was provided to a claimant or his/her representative on or after the effective date of the modernized review system as provided in § 19.2(a) of this chapter, or where a claimant has elected review of a legacy claim under the modernized review system as provided in § 3.2400(c) of this chapter.
(b) Reviews available. Within one year from the date on which VA issues notice of a decision on an issue contained within a claim, a claimant may elect one of the following administrative review options:
(1) Supplemental Claim. The nature of this review will accord with § 3.2501 of this chapter, except that a complete application in writing on a form prescribed by the Secretary will not be required and a hearing will not be provided.
(2) Appeal to the Board of Veterans' Appeals. See 38 CFR part 20.
(3) Higher-level Review. The nature of this review will accord with § 3.2601.
(c) Notice requirements. Notice of a decision made under paragraph (b)(1) or (3) of this section will include all of the elements described in § 21.420(b).
§ 21.420   Informing the veteran.
(a) General. VA will inform a veteran in writing of findings affecting receipt of benefits and services under Chapter 31. This includes veterans:
(1) Requesting benefits and services; or
(2) In receipt of benefits and services.
(b) Notification: Each notification should include the following:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the Secretary.
(3) A summary of the applicable laws and regulations relevant to the decision.
(4) Identification of findings favorable to the veteran.
(5) In the case of a denial of a claim, identification of elements not satisfied leading to the denial.
(6) An explanation of how to obtain or access evidence used in making the decision.
(7) A summary of the applicable review options available for the veteran to seek further review of the decision.
(c) Adverse action. An adverse action is one, other than an interim action such as a suspension of benefits pending development, which:
(1) Denies Chapter 31 benefits, when such benefits have been requested;
(2) Reduces or otherwise diminishes benefits being received by the veteran; or
(3) Terminates receipt of benefits for reasons other than scheduled interruptions which are a part of the veteran's plan.
(d) Prior notification of adverse action. VA shall give the veteran a period of at least 30 days to review, prior to its promulgation, an adverse action other than one which arises as a consequence of a change in training time or other such alteration in circumstances. During that period, the veteran shall be given the opportunity to:
(1) Meet informally with a representative of VA;
(2) Review the basis for VA decision, including any relevant written documents or material; and
(3) Submit to VA any material which he or she may have relevant to the decision.
(e) Favorable findings. Any finding favorable to the veteran is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.
§ 21.422   Reduction in subsistence allowance following the loss of a dependent.
(a) Notice of reduction required when a veteran loses a dependent. (1) Except as provided in paragraph (a)(2) of this section, VA will not reduce an award of subsistence allowance following the veteran's loss of a dependent unless:
(i) VA has notified the veteran of the adverse action, and
(ii) VA has provided the veteran with a period of 60 days in which to submit evidence for the purpose of showing that subsistence allowance should not be reduced.
(2) When the reduction is based solely on written, factual, unambiguous information as to dependency provided by the veteran or his or her fiduciary with knowledge or notice that the information would be used to determine the monthly rate of subsistence allowance;
(i) VA is not required to send a pre-reduction notice as stated in paragraph (a)(1) of this section, but;
(ii) VA will send notice contemporaneous with the reduction in subsistence allowance.
(b) Pre-reduction notice. Where a reduction in subsistence allowance is proposed by reason of information concerning dependency received from a source other than the veteran, VA will:
(1) Prepared a proposal for the reduction of subsistence allowance, setting forth material facts and reasons;
(2) Notify the veteran at his or her latest address of record of the proposed action;
(3) Furnish detailed reasons for the proposed reduction;
(4) Inform the veteran that he or she has an opportunity for a predetermination hearing, provided that VA receives a request for such a hearing within 30 days from the date of the notice; and
(5) Give the veteran 60 days for the presentation of additional evidence to show that the subsistence allowance should be continued at its present level.
(c) Predetermination hearing. (1) If VA receives a timely request for a predetermination hearing as indicated in paragraph (b)(4) of this section:
(i) VA will notify the veteran in writing of the date, time and place for the hearing; and
(ii) Payments of subsistence allowance will continue at the previously established level pending a final determination concerning the proposed reduction.
(2) The hearing will be conducted by a VA employee who:
(i) Did not participate in the preparation of the proposal to reduce the veteran's subsistence allowance, and
(ii) Will bear the decision-making responsibility.
(d) Final action. VA will take final action following the predetermination procedures specified in paragraph (c) of this section.
(1) If a predetermination hearing was not requested or if the veteran failed to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record at the expiration of 60 days.
(2) If a predetermination hearing was conducted, VA will base final action upon:
(i) Evidence presented at the hearing;
(ii) Evidence contained in the claims file at the time of the hearing; and
(iii) Any additional evidence obtained following the hearing pursuant to necessary development.
(3) Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the veteran setting forth the reasons for the decision, and the evidence upon which it is based. The veteran will be informed of his or her appellate rights and right of representation. (For information concerning the conduct of the hearing see § 3.103 (c) and (d) of this chapter).
(4) When a reduction of subsistence allowance is found to be warranted following consideration of any additional evidence submitted, the effective date of the reduction or discontinuance shall be as specified under the provisions of § 21.324 of this part.
§ 21.430   Accountability for authorization and payment of training and rehabilitation services.
(a) General. VA shall maintain policies and procedures which provide accountability in the authorization and payment of program costs for training and rehabilitation services. The procedures established under this section are applicable to all program costs except subsistence allowance (or the optional allowance at Chapter 34 rates). Policies and procedures governing payment of subsistence allowance are governed by §§ 21.260 through 21.276, and §§ 21.320 through 21.334.
(b) Determining necessary costs for training and rehabilitation services. The estimates of program costs during a calendar year or lesser period shall be based upon the services necessary to carry out the veteran's rehabilitation plan during that period (§§ 21.80 through 21.96). The estimates will be developed by the VBA case manager. If additional approval is required, the VBA case manager shall secure such additional approval prior to authorization of services.
(c) Veteran Readiness and Employment (VR&E) Officer's review of program costs. The VR&E Officer will review the program costs for the services in paragraphs (c)(1) through (3) of this section if the case manager's program cost estimate for a calendar year exceeds $25,000. The VR&E Officer may not delegate this responsibility. The case manager will neither sign a rehabilitation plan nor authorize expenditures before the VR&E Officer approves the program costs. The services subject to this review are:
(1) Providing supplies to help establish a small business;
(2) A period of extended evaluation; or
(3) A program of independent living services.
See § 21.156. Other incidental goods and services. § 21.258. Special assistance for veterans in self-employment.
§ 21.440   Purpose and scope.
Sections 21.440 through 21.449 establish and implement the Veterans Employment Pay for Success (VEPFS) grant program, which provides grants to eligible entities to fund outcomes payments for projects that are successful in accomplishing employment rehabilitation for Veterans with service-connected disabilities. These sections apply only to the administration of the VEPFS grant program, unless specifically provided otherwise.
§ 21.441   Definitions.
For the purposes of §§ 21.440 through 21.449, and any Notices of Funding Availability (NOFA) issued pursuant to §§ 21.440 through 21.449, the following definitions apply:
Applicant is an eligible entity that submits an application for a VEPFS grant announced in a NOFA.
Eligible entity is a public or nonprofit agency, to include institutions of higher learning.
Employment outcome is the employment or earnings of a participant in an intervention group or control or comparison group during or after the service period. Improving employment outcomes means creating positive impact in terms of these outcomes, where the results for individuals that receive the intervention are better than the results for a valid control or comparison group that did not receive the intervention.
Intervention is a service or technology that is provided to individuals and is intended to achieve certain results.
Outcomes payments are funds that are paid to an investor or service provider and that are released only for the achievement of outcomes, as compared to those of a control or comparison group, that meet target levels that have been agreed to in advance of the provision of intervention ( i.e., if positive impact has been created by the intervention in terms of these outcomes). When investors have provided the upfront capital for the project, these payments generally cover repayment of the principal investment and provide a modest return on investment for any associated risks of paying for the intervention upfront.
Pay for Success (PFS) agreement is a multi-party agreement to deliver an innovative or evidence-based intervention intended to improve outcomes for a targeted population signed by the entities that constitute the project partnership.
Project partnership is a collaboration among entities that negotiate one or more agreements and execute a project to improve employment outcomes for Veterans with service-connected disabilities. The entities that may be involved in a project partnership include:
(1)(i) Outcomes payor. Entity that receives a VEPFS grant and pays for outcomes of services that meet target levels that have been agreed to in advance of the provision of the intervention.
(ii) Project coordinator. Facilitates, coordinates, and executes a PFS agreement to improve employment outcomes for Veterans with service-connected disabilities. With respect to other PFS projects, project coordinators are sometimes referred to as intermediaries.
(iii) Evaluator. Independent entity that determines the impact of the services provided, including whether the services have resulted in employment outcomes that meet target levels that have been agreed to in advance of the provision of the intervention.
(iv) Investor. Person or entity that provides upfront capital to cover costs of providing services/delivering an intervention and other associated costs before a determination has been made as to whether certain employment outcomes have been achieved at pre-set target levels.
(v) Service provider. Entity that delivers an intervention designed to achieve improved employment outcomes for Veterans with service-connected disabilities.
(2) A full project partnership is a project partnership that includes an outcomes payor, evaluator, investor (if the PFS agreement involves PFS financing), and service provider. A partial project partnership includes an outcomes payor and at least one of the following: Evaluator, investor (if the PFS agreement involves PFS financing), or service provider.
Recipient is the entity that receives a VEPFS grant under §§ 21.440 through 21.449. The recipient is also the outcomes payor.
Secretary refers to the Secretary of Veterans Affairs.
Service-connected disability is a disability that is “service-connected” as defined in 38 CFR 3.1.
Social finance strategy is a method for securing financial resources using an investment approach that focuses on achieving positive social and/or environmental impact with some form of financial return.
Strong evidence constitutes results from previous studies, the designs of which can support causal conclusions ( i.e., studies with high internal validity), that include enough of the range of participants and settings to support scaling up to the state, regional, or national level ( i.e., studies with high external validity).
Veteran has the same definition as provided in 38 CFR 3.1.
Veterans Employment Pay for Success (VEPFS) agreement is a PFS agreement to deliver an innovative, evidence-based intervention intended to improve Veteran employment outcomes.
Veterans Employment Pay for Success (VEPFS) project is a project with a strategy for delivering a service with a goal to significantly improve a current condition with respect to unemployment of a target Veteran population and sufficient evidence to support the theory behind the project using a financial model that includes cost savings by funding the project only if it is successful.
Work-plan is a document that articulates tasks and milestones with regard to a particular project.
§ 21.442   VEPFS grants—general.
(a) VA may award a VEPFS grant only to an eligible entity selected under § 21.446.
(b) The amount of Federal funding available to be awarded in a VEPFS grant will be specified in the NOFA.
(c) A VEPFS grant will be awarded for a minimum and maximum number of years that is specified in the VEPFS grant agreement, beginning on the date on which the VEPFS grant is awarded, with the availability of no-cost extensions.
(d) As a condition of receiving a VEPFS grant, a recipient will be required to provide matching funds from non-Federal sources equal to or greater than the amount of Federal grant funds awarded, to be combined with the amount of Federal grant funds awarded and used as specified in § 21.443.
(e) A VEPFS grant award is not a Veterans' benefit. Decisions of the Secretary are final and not subject to the same appeal rights as decisions related to Veterans' benefits.
§ 21.443   Permissible uses of VEPFS grant funds.
(a) VEPFS grant funds may be used only to fund outcomes payments if an intervention achieves outcomes at a pre-set target level that has been agreed to in a PFS agreement before service delivery begins for a PFS project with a goal to improve employment outcomes for Veterans with service-connected disabilities.
(b) To pay for the indirect costs of administering a grant, regardless of whether an intervention achieves outcomes at a pre-set target level, a recipient may:
(1) Use a Federally approved indirect cost rate (a rate already negotiated with the Federal Government);
(2) Use a 10% de minimis rate of modified total direct costs;
(3) Negotiate an indirect cost rate for the first time; or
(4) Claim certain costs directly following 2 CFR 200.413.
§ 21.444   Notice of funding availability.
When funds are available for a VEPFS grant, VA will publish a NOFA in the Federal Register and on Grants.gov ( http://www.grants.gov ). The NOFA will identify:
(a) The location for obtaining grant applications and the specific forms that will be required;
(b) The date, time, and place for submitting completed grant applications;
(c) The total amount and type of funds available and the maximum amount available to a single applicant;
(d) Information regarding eligibility and the scoring process;
(e) Any timeframes and manner for payments under the grant; and
(f) Other information necessary for the VEPFS grant application process, as determined by VA, including contact information for the VA office that will oversee the VEPFS grant.
§ 21.445   Application.
To apply for a VEPFS grant, eligible entities must submit to VA a complete application package in accordance with the instructions in the NOFA and include the forms specified in the NOFA. Applications will be accepted only through Grants.gov ( http://www.grants.gov ). A complete grant application package, as further described in the NOFA, includes standard forms specified in the NOFA and the following:
(a) Project description, including a description of the intervention, the Veteran population to be served, and anticipated employment outcomes;
(b) Description of anticipated project partnership(s), including the responsibilities of each of the partner entities, the experience of any involved entities with serving Veteran populations, and other qualifications of the involved entities that may be relevant in carrying out responsibilities of the project partnership. In establishing the project partnership, entities, including the project coordinator, evaluator, and service provider, but excluding investors, must be procured following procurement standards set forth in 2 CFR 200.317 through 200.326.
(c) A work plan, including a budget and timelines;
(d) Description of applicant's expertise or experience with PFS or other social finance strategies or experience administering programs that serve Veterans with disabilities;
(e) Documentation of applicant's ability and capacity to administer the project;
(f) Proof of matching funds already secured, ability to secure matching funds, or commitments received; and
(g) Any additional information as deemed appropriate by VA and set forth in the NOFA.
§ 21.446   Scoring and selection.
(a) Scoring. VA will score only complete applications received from eligible entities by the deadline established in the NOFA. VA will score applications using the following criteria:
(1) Project description. Applicant identifies and describes an intervention that is designed to improve employment outcomes for Veterans with service-connected disabilities through a PFS agreement and demonstrates with strong evidence the ability of the intervention to meet objectives. Project description should explain and justify the need for the intervention, and include concept, size and scope of the project, and the Veteran population to be served.
(2) Project partnership. Applicant provides a description of the partnership and the level of partnership (full, partial, or none) attained at the time of application.
(3) Work plan and budget. Applicant provides a work plan that describes in detail the timeline for the tasks outlined in the project description and proposed milestones. Applicant provides a budget that specifies amount of outcome payments and indirect and other relevant costs.
(4) Expertise and capacity. Applicant provides evidence of its past experience with PFS or other social finance strategies or experience administering programs that serve Veterans with disabilities, and of its ability and capacity to successfully administer the project.
(5) Match. Applicant provides evidence of secured cash matching (1:1) funds or of its ability to secure or commitments to receive such funds.
(b) Selection of recipients. All complete applications from eligible entities will be scored using the criteria in paragraph (a) of this section and ranked in order from highest to lowest total score. NOFA announcements may also clarify the selection criteria in paragraph (a). The relative weight (point value) for each selection criterion will be specified in the NOFA. Point values will be assigned according to the criterion's importance in ensuring the successful development and implementation of a VEPFS project. VA will award any VEPFS grant on the primary basis of scores but will also consider a risk assessment evaluation.
§ 21.447   VEPFS grant agreement.
After an applicant is selected to receive a VEPFS grant in accordance with § 21.446, VA will draft a grant agreement to be executed by VA and the applicant. Upon execution of the VEPFS grant agreement, VA will obligate grant funds to cover the amount of the approved grant, subject to the availability of funding. The VEPFS grant agreement will provide that the recipient agrees, and will ensure that each subcontractor (if applicable) agrees, to:
(a) Operate the program in accordance with the provisions of §§ 21.440 through 21.449, 2 CFR part 200, and the applicant's VEPFS grant application;
(b) Comply with such other terms and conditions, including recordkeeping and reports for program monitoring and evaluation purposes, as VA may establish in the Terms and Conditions of the grant agreement for purposes of carrying out the VEPFS program in an effective and efficient manner; and
(c) Provide additional information that VA requests with respect to:
(1) Program effectiveness, as defined in the Terms and Conditions of the grant agreement;
(2) Compliance with the Terms and Conditions of the grant agreement; and
(3) Criteria for evaluation, as defined in the Terms and Conditions of the grant agreement.
§ 21.448   Recipient reporting requirements.
(a) Recipients must submit to VA a quarterly report 30 days after the close of each Federal fiscal quarter of the grant period. The report must include the following information:
(1) A detailed record of the time involved and resources expended administering the VEPFS program.
(2) The number of Veterans served, including demographics of this population.
(3) The types of employment assistance provided.
(4) A full accounting of VEPFS grant funds used or unused during the quarter.
(5) A comparison of accomplishments related to the objectives of the award.
(6) An explanation for any goals not met.
(7) An analysis and explanation for any cost overruns.
(b) VA may request additional reports in the Terms and Conditions of the grant agreement if necessary to allow VA to fully and effectively assess program accountability and effectiveness.
§ 21.449   Recovery of funds.
If a recipient fails to comply with any Federal statutes or regulations or the terms and conditions of an award made under §§ 21.440 through 21.449, VA may impose additional conditions as specified in 2 CFR 200.207 or, if non-compliance cannot be remedied, take any appropriate actions specified in 2 CFR part 200 as remedies for non-compliance.
§ 21.1029   Definitions.
The following definitions of terms apply to this subpart and subparts C, D, F, G, H, K, L, and P, to the extent that the terms are not otherwise defined in those subparts:
(a) Abandoned claim. A claim is an abandoned claim if:
(1) In connection with a formal claim VA requests that the claimant furnish additional evidence, and the claimant—
(i) Does not furnish that evidence within one year of the date of the request; and
(ii) Does not show good cause why the evidence could not have been submitted within one year of the date of the request; or
(2) In connection with an informal claim, VA requests a formal claim, and—
(i) VA does not receive the formal claim within one year of the date of request; and
(ii) The claimant does not show good cause why he or she could not have filed the formal claim in sufficient time for VA to have received it within one year of the date of the request.
(b) Date of claim. The date of claim is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance.
(1) If an informal claim is filed and VA receives a formal claim within one year of the date VA requested it, or within such other period of time as provided by § 21.1033, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the informal claim.
(2) If a formal claim is filed other than as described in paragraph (b)(1) of this section, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the formal claim.
(3) If a formal claim itself is abandoned and a new formal or informal claim is filed, the date of claim is as provided in paragraph (b)(1) or (b)(2) of this section, as appropriate.
(c) Educational institution. The term educational institution means:
(1) A vocational school or business school;
(2) A junior college, teachers' college, college, normal school, professional school, university, or scientific or technical institution;
(3) A public or private elementary school or secondary school;
(4) Any entity, other than an institution of higher learning, that provides training for completion of a State-approved alternative teacher certification program;
(5) An organization or entity offering a licensing or certification test; or
(6) Any private entity that offers, either directly or indirectly under an agreement with another entity, a course or courses to fulfill requirements for the attainment of a license or certificate generally recognized as necessary to obtain, maintain, or advance in employment in a profession or vocation in a high technology occupation.
(d) Formal claim. A claim is a formal claim when the claimant (or his or her authorized representative) files the claim with VA, and—
(1) The claim is a claim for—
(i) Educational assistance;
(ii) An increase in educational assistance; or
(iii) An extension of the eligibility period for receiving educational assistance; and
(2) If there is a form (either paper or electronic) prescribed under this part, the claim is filed on that form.
(e) Informal claim. (1) If a form (either paper or electronic) has been prescribed under this part to use in claiming the benefit sought, the term informal claim means—
(i) Any communication from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance; or
(ii) A claim from an individual or from an authorized representative on that individual's behalf for a benefit described in paragraph (d)(1)(i) of this section that is filed in a document other than in the prescribed form.
(2) If a form (either paper or electronic) has not been prescribed to use in claiming the benefit sought, the term informal claim means any communication, other than a formal claim, from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance.
(3) When VA requests evidence in connection with a claim, and the claimant submits that evidence to VA after having abandoned the claim, the claimant's submission of the evidence is an informal claim.
(4) The act of enrolling in an approved educational institution or training establishment is not an informal claim.
(5) VA will not consider a communication received from a service organization, an attorney, or agent to be an informal claim if a valid power of attorney, executed by the claimant, is not in effect at the time the communication is written.
(f) Information. The term information means nonevidentiary facts, such as the claimant's Social Security number or address, or the name of the educational institution the claimant is attending.
(g) Substantially complete application. (1) The term substantially complete application means, for an individual's first application for educational assistance administered by VA, an application containing—
(i) The claimant's name;
(ii) His or her relationship to the veteran, if applicable;
(iii) Sufficient information for VA to verify the claimed service, if applicable;
(iv) The benefit claimed;
(v) The program of education, if applicable; and
(vi) The name of the educational institution or training establishment the claimant intends to attend, if applicable.
(2) For subsequent applications for educational assistance administered by VA, a substantially complete application means an application containing the information specified in paragraphs (g)(1)(i) through (g)(1)(vi) of this section, except that the application may omit any information specified in paragraphs (g)(1)(ii) or (g)(1)(iii) of this section that is already of record with VA.
(h) Training establishment. The term training establishment means any establishment providing apprentice or other training on-the-job, including those under the supervision of a college, university, any State department of education, any State apprenticeship agency, any State board of vocational education, any joint apprenticeship committee, the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. chapter 4C, or any agency of the Federal government authorized to supervise such training.
(i) VA. The term VA means the United States Department of Veterans Affairs.
§ 21.1030   Claims.
(a) Claim for educational assistance. (1) The first time an individual claims educational assistance administered by VA for pursuit of a program of education, he or she must file an application for educational assistance using a form the Secretary prescribes for that purpose.
(2) If an individual changes his or her program of education or place of training after filing his or her first application for educational assistance, he or she must file an application requesting the change of program or place of training using a form the Secretary prescribes for that purpose.
(3) A servicemember must consult with his or her education service officer before filing an application for educational assistance, whether it is the first application or an application to request a change of program or place of training.
(b) Filing a claim for educational assistance to pay for a licensing or certification test. To receive educational assistance to pay for a licensing or certification test, an individual must file a claim for educational assistance.
(1) If the claim is the first claim for educational assistance administered by VA, the individual must file an application for educational assistance using a form the Secretary prescribes for that purpose and must include the information described in paragraphs (b)(2)(i) through (b)(2)(vi) of this section.
(2) If the claim is the second or subsequent claim for educational assistance, the claim must include:
(i) The name of the test;
(ii) The name and address of the organization or entity issuing the license or certificate;
(iii) The date the claimant took the test;
(iv) The cost of the test;
(v) A statement authorizing release of the claimant's test information to VA, such as: “I authorize release of my test information to VA”; and
(vi) Such other information as the Secretary may require.
(c) Filing a claim for educational assistance to supplement tuition assistance provided under a program administered by the Secretary of a military department. To receive tuition assistance top-up as defined in § 21.4200(hh), an individual must file a claim for educational assistance.
(1) If the claim is the first claim for educational assistance administered by VA, the individual must file an application for educational assistance using a form the Secretary prescribes for that purpose.
(2) If the claim is the second or subsequent claim for educational assistance, the claimant may submit a statement that he or she wishes to receive tuition assistance top-up.
(3) The claimant must also submit a copy of the form(s) that the military service with jurisdiction requires for tuition assistance and that had been presented to the educational institution, covering the course or courses for which the claimant wants tuition assistance top-up. Examples of these forms include:
(i) DA Form 2171, Request for Tuition Assistance-Army Continuing Education System;
(ii) AF Form 1227, Authority for Tuition Assistance-Education Services Program;
(iii) NAVMC 10883, Application for Tuition Assistance, and either NAVEDTRA 1560/5, Tuition Assistance Authorization or NAVMC (page 2), Tuition Assistance Authorization;
(iv) Department of Homeland Security, USCG CG-4147, Application for Off-Duty Assistance; and
(v) Request for Top-Up: eArmyU Program.
(4) The claimant must also provide to VA the following information, to the extent it is not contained on any form filed under paragraph (c)(1) or (c)(3) of this section:
(i) His or her name;
(ii) His or her Social Security number;
(iii) The name of the educational institution;
(iv) The name of the course or courses for which the claimant wants educational assistance;
(v) The number of the course or courses;
(vi) The number of credit hours for each course;
(vii) The beginning and ending date of each course;
(viii) The cost of the course or courses; and
(ix) If the claimant doesn't want to receive the full amount of that cost not met by the Secretary of the military department concerned, the portion that the claimant wishes to receive.
(5) If the claimant's military department uses an electronic tuition assistance application process with electronic signatures, VA will accept an electronic transmission of the approved tuition assistance application directly from the military department concerned on behalf of the claimant if—
(i) The electronic tuition assistance application indicates the servicemember's intent to claim tuition-assistance top-up; and
(ii) The information described in paragraph (c)(4) of this section is included in the electronic application.
§ 21.1031   VA responsibilities when a claim is filed.
(a) VA will furnish forms. VA will furnish all necessary VA claim forms and instructions, and, if appropriate, a description of any supporting evidence required upon receipt of an informal claim.
(b) VA has a duty to notify claimants of necessary information or evidence. (1) Except when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit, when VA receives a complete or substantially complete application for educational assistance provided under subpart C, D, G, H, K, L, or P of this part VA will—
(i) Notify the claimant of any information and evidence that is necessary to substantiate the claim; and
(ii) Inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, VA will try to obtain for the claimant.
(2) The information and evidence that VA, pursuant to paragraph (b)(1) of this section informs the claimant that the claimant must provide, must be provided within one year from the date of the notice. If VA does not receive such information and evidence from the claimant within that time period, VA may adjudicate the claim based on the information and evidence in the file.
(3) If the claimant has not responded to the request within 30 days, VA may decide the claim before the expiration of the one-year period prescribed in paragraph (b)(2) of this section, based on all the information and evidence in the file, including information and evidence it has obtained on behalf of the claimant. If VA does so, however, and the claimant subsequently provides the information and evidence within one year of the date of the request, VA must readjudicate the claim. If VA's decision on a readjudication is favorable to the claimant, the award shall take effect as if the prior decision by VA on the claim had not been made.
(4) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. If the information necessary to complete the application is not received by VA within one year from the date of such notice, VA cannot pay or provide any benefits based on that application.
(5) For the purpose of this paragraph, if VA must notify the claimant, VA will provide notice to:
(i) The claimant;
(ii) His or her fiduciary, if any; and
(iii) His or her representative, if any.
§ 21.1032   VA has a duty to assist claimants in obtaining evidence.
(a) VA's duty to assist begins when VA receives a complete or substantially complete application. (1) Except as provided in paragraph (d) of this section, upon receipt of a complete or substantially complete application for educational assistance under subpart C, D, G, H, K, L, or P of this part, VA will—
(i) Make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and
(ii) Give the assistance described in paragraphs (b) and (c) of this section to an individual attempting to reopen a finally decided claim.
(2) VA will not pay any fees a custodian of records may charge to provide the records VA requests.
(b) Obtaining records not in the custody of a Federal department or agency. (1) VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. These records include relevant records from:
(i) State or local governments;
(ii) Private medical care providers;
(iii) Current or former employers; and
(iv) Other non-Federal governmental sources.
(2) The reasonable efforts described in paragraph (b)(1) of this section will generally consist of an initial request for the records and, if VA does not receive the records, at least one follow-up request. The following are exceptions to this provision concerning the number of requests that VA generally will make:
(i) VA will not make a follow-up request if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.
(ii) If VA receives information showing that subsequent requests to the initial or another custodian could result in obtaining the records sought, reasonable efforts will include an initial request and, if VA does not receive the records, at least one follow-up request to the new source or an additional request to the original source.
(3) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including—
(i) The person, company, agency, or other custodian holding the records;
(ii) The approximate time frame covered by the records; and
(iii) In the case of medical treatment records, the condition for which treatment was provided.
(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.
(c) Obtaining records in the custody of a Federal department or agency. (1) VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to:
(i) Military records;
(ii) Medical and other records from VA medical facilities;
(iii) Records from non-VA facilities providing examination or treatment at VA expense; and
(iv) Records from other Federal agencies.
(2) VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include cases in which the Federal department or agency advises VA that the requested records do not exist or that the custodian of such records does not have them.
(3) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal department or agency custodians. At VA's request, the claimant must provide enough information to identify and locate the existing records, including—
(i) The custodian or agency holding the records;
(ii) The approximate time frame covered by the records; and
(iii) In the case of medical treatment records, the condition for which treatment was provided.
(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records.
(d) Circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete or complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to:
(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;
(2) Claims that are inherently not credible or clearly lack merit; and
(3) An application requesting a benefit to which the claimant is not entitled as a matter of law.
(e) Duty to notify claimant of inability to obtain records. (1) VA will notify the claimant either orally or in writing when VA:
(i) Makes reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them; or
(ii) After continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or that further efforts to obtain them would be futile.
(2) For non-Federal records requests, VA may provide the notice to the claimant at the same time it makes its final attempt to obtain the relevant records.
(3) VA will make a record of any oral notice conveyed under paragraph (e) of this section to the claimant.
(4) The notice to the claimant must contain the following information:
(i) The identity of the records VA was unable to obtain;
(ii) An explanation of the efforts VA made to obtain the records;
(iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of this section;
(iv) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and
(v) A notice that the claimant is ultimately responsible for obtaining the evidence.
(5) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the existence of such records and ask that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will ask that the claimant obtain the records and provide them to VA.
(6) For the purpose of this section, if VA must notify the claimant, VA will provide notice to:
(i) The claimant;
(ii) His or her fiduciary, if any; and
(iii) His or her representative, if any.
§ 21.1033   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.
(b) [Reserved]
(c) Time limit for filing a claim for an extended period of eligibility under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35. VA must receive a claim for an extended period of eligibility provided by § 21.3047, § 21.5042, § 21.7051, § 21.7551, or § 21.9535 by the later of the following dates:
(1) One year from the date on which the spouse's, surviving spouse's, veteran's, reservist's, or other eligible individual's original period of eligibility ended; or
(2) One year from the date on which the spouse's, surviving spouse's, veteran's, reservist's, or other eligible individual's physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education.
(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.
(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.
(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 §§ 20.203 and 20.110 of this chapter.
§ 21.1034   Review of decisions.
(a) Decisions. A claimant may request a review of a decision on eligibility or entitlement to educational assistance under title 38, United States Code. A claimant may request review of a decision on entitlement to educational assistance under 10 U.S.C. 510, and 10 U.S.C. chapters 106a, 1606, and 1607. A claimant may not request review of a decision on eligibility under 10 U.S.C. 510, and 10 U.S.C. chapters 106a, 1606, and 1607 or for supplemental or increased educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C. 3015(d), 3021, or 3316 to VA as the Department of Defense solely determines eligibility to supplemental and increased educational assistance under these sections.
(b) Reviews available. Except as provided in paragraph (d) of this section, within one year from the date on which the agency of original jurisdiction issues notice of a decision described in paragraph (a) of this section as subject to a request for review, a claimant may elect one of the following administrative review options:
(1) Supplemental Claim Review. See § 3.2501 of this chapter.
(2) Higher-level Review. See § 3.2601 of this chapter.
(3) Board of Veterans' Appeals Review. See 38 CFR part 20.
(c) Part 3 provisions. See § 3.2500(b)-(d) of this chapter for principles that generally apply to a veteran's election of review of a decision described in paragraph (a) of this section as subject to a request for review.
(d) Contested claims. See subpart E of part 20 of this title for the timeline pertaining to contested claims.
(e) Applicability. This section applies where notice of a decision described in paragraph (a) of this section was provided to a veteran on or after the effective date of the modernized review system as provided in § 19.2(a) of this chapter, or where a veteran has elected review of a legacy claim under the modernized review system as provided in § 3.2400(c) of this chapter.
§ 21.1035   Legacy review of benefit claims decisions.
(a) A claimant who has filed a Notice of Disagreement with a decision described in § 21.1034(a) that does not meet the criteria of § 21.1034(e) of this chapter has a right to a review under this section. The review will be conducted by the Educational Officer of the Regional Processing Officer, at VA's discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no deference to the decision being reviewed.
(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the legacy appeal process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision.
(c) The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under the version of § 3.103(c) of this chapter predating Public Law 115-55.
(d) A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision.
(e) The reviewer may grant a benefit sought in the claim, notwithstanding § 3.105(b) of this chapter. The reviewer may not revise the decision in a manner that is less advantageous to the claimant than the decision under review, except that the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see § 3.105(a) of this chapter).
(f) Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the legacy appeal process by issuing a Statement of the Case.
§ 21.3001   Delegation of authority.
Except as otherwise provided, authority is delegated to the Under Secretary for Benefits and to supervisory or administrative personnel within the jurisdiction of the Education Service, Veterans Benefits Administration, designated by him or her to make findings and decisions under 38 U.S.C. chapter 35 and the applicable regulations, precedents and instructions, as to the program authorized by this subpart.
§ 21.3002   Administration of Survivors' and Dependents' Educational Assistance Program.
Subpart D of this part applies to the Survivors' and Dependents' Educational Assistance Program, unless the provisions of a section in that subpart are explicitly limited to one or more of the other educational assistance programs VA administers.
§ 21.3020   Educational assistance.
The program of educational assistance under 38 U.S.C. Chapter 35 captioned Survivors' and Dependents' Educational Assistance, may be referred to as Dependents' Educational Assistance.
(a) General. A program of education or special restorative training may be authorized for an eligible person who meets the definition contained in § 21.3021.
(b) 45 months limitation. Educational assistance may not exceed a period of 45 months, or the equivalent in part-time training, unless it is determined that a longer period is required for special restorative training under the circumstances outlined in § 21.3300(c) or except as specified in § 21.3044(c).
(c) Courses in foreign countries. A course to be pursued at a school not located in a State or in the Philippines may not be approved except under the circumstances outlined in § 21.4260.
§ 21.3021   Definitions.
For the purposes of subpart C and the payment of basic educational assistance under 38 U.S.C. chapter 35, the following definitions apply.
(a) Eligible person means:
(1) A child of a:
(i) Veteran who died of a service-connected disability.
(ii) Veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability.
(iii) Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.
(iv) Person who is on active duty as a member of the Armed Forces and who 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.
(2) The surviving spouse of a:
(i) Veteran who died of a service-connected disability.
(ii) Veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability, arising out of active military, naval or air service after the beginning of the Spanish-American War. (See §§ 3.6(a) and 3.807 of this chapter.)
(3) The spouse of a:
(i) Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.
(ii) Person who is on active duty as a member of the Armed Forces and who 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) Child means a son or daughter of a veteran as defined in § 3.807(d) of this chapter. The term includes a child of a Philippine Commonwealth Army veteran and a Philippine Scout (designated as a New Philippine Scout under 38 U.S.C. 3566(b)), as defined in § 3.40(b), (c), or (d) of this chapter, but educational assistance allowance may not be authorized based on such service for any period before September 30, 1966.
(c) Wife and widow, spouse and surviving spouse. The terms wife and widow mean an individual as defined in § 3.807(d) of this chapter and the terms spouse and surviving spouse shall have the same respective meaning when used in the regulations in part 21, Title 38, Code of Federal Regulations. Educational assistance allowance may not be authorized for any such individuals for any period before December 1, 1968.
(d) Parent or guardian means a natural or adoptive parent, a fiduciary legally appointed by a court of competent jurisdiction or any person who is determined to be otherwise legally vested with the care of the eligible person (38 U.S.C. 3501(a)(4)) or it may be the eligible person if he or she has attained majority under laws applicable in his or her State of residence as shown on the application and is under no known legal disability. (38 U.S.C. 3501(b)) The eligible person may be designated as the person by whom required actions may be taken even though he or she has not attained majority, or having attained majority, is under a legal disability, when it is determined that to do otherwise would not be in his or her best interest, would result in undue delay or would not be administratively feasible. Where necessary to protect his or her interest and there is reason why the eligible person should not act for himself or herself, some other individual may be designated as the person by whom required actions should be taken.
(e) Armed Forces, as to service by the eligible person, means the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard, including the Reserve components of each, the National Guard of the United States and the Air National Guard of the United States. (38 U.S.C. 3501 (a)(3) and (d) and 3512(a)) Effective December 31, 1970, the term includes the National Oceanic and Atmospheric Administration, the Environmental Science Services Administration and the Coast and Geodetic Survey, as to full-time duty of officers commissioned therein.
(f) Duty with the Armed Forces, as to service by the eligible person, means active duty, active duty for training for a period of 6 or more consecutive months, or an initial period of active duty for training of not less than 3 months or more than 6 months in the Ready Reserve. (38 U.S.C. 3501(a)(3) and (d), 3512(a)) See §§ 21.3041 and 21.3042.
(g) State means each of the several States, territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico, and the Canal Zone. (38 U.S.C. 101(20)) (Although the Republic of the Philippines is not included in the definition of a State, eligible persons may pursue courses of training in that country.)
(h) Program of education. The term program of education means any curriculum or any combination of unit courses or subjects pursued at an educational institution that is generally accepted as necessary to fulfill the requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. The term program of education also includes—
(1) A preparatory course for a test that is required or used for admission to an institution of higher education;
(2) A preparatory course for a test that is required or used for admission to a graduate school; and
(3) A licensing or certification test, the successful completion of which demonstrates an individual's possession of the knowledge or skill required to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession, provided such tests and the licensing or credentialing organizations or entities that offer such tests are approved by VA.
(i) Educational objective. An educational objective is one that leads to the awarding of a diploma, degree, or certificate which reflects educational attainment.
(j) Professional or vocational objective. A professional or vocational objective is one that leads to an occupation. It may include educational objectives essential to prepare for the chosen occupation. When a program consists of a series of courses not leading to an educational objective, such courses must be directed toward attainment of a designated professional or vocational objective.
(k) School, educational institution, institution. The terms school, educational institution and institution mean:
(1) A vocational school or business school;
(2) A junior college, teachers' college, college, normal school, professional school, university, or scientific or technical institution;
(3) A public or private secondary school;
(4) A training establishment as defined in § 21.4200(c); or
(5) An institution that provides specialized vocational training, generally recognized as on the secondary school level or above, for people with mental or physical disabilities.
(l) Disabling effects of chronic alcoholism. (1) The term disabling effects of chronic alcoholism means alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations of chronic alcoholism which in the particular case:
(i) Have been medically diagnosed as manifestations of alcohol dependency or chronic alcohol abuse; and
(ii) Are determined to have prevented commencement or completion of the affected individual's chosen program of education.
(2) A diagnosis of alcoholism, chronic alcoholism, alcohol-dependency, chronic alcohol abuse, etc., in and of itself, does not satisfy the definition of this term.
(3) Injury sustained by an eligible spouse or surviving spouse as a proximate and immediate result of activity undertaken by the eligible spouse or surviving spouse while physically or mentally unqualified to do so due to alcoholic intoxication is not considered a disabling effect of chronic alcoholism.
(m) Institution of higher education. The term institution of higher education has the same meaning as provided in § 21.7020(b)(45).
(n) Graduate school. The term graduate school has the same meaning as provided in § 21.7020(b)(46).
(o) Eligibility date. The term eligibility date means the date on which an individual becomes an eligible person (as defined in paragraph (a) of this section).
(p) P&T means permanent and total “disability,” permanently and totally “disabled,” or permanent and total “rating,” when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran.
(q) Initial rating decision. The term initial rating decision means, with respect to an eligible spouse or child, a decision made by VA that establishes for the person from whom such eligibility is derived—
(1) Service connection for the cause of the person's death;
(2) A service connected P&T disability; or
(3) For a member of the Armed Forces, a P&T disability incurred or aggravated in the line of duty in the active military, naval, or air service if the member is hospitalized or receiving outpatient medical care, services, or treatment, and is likely to be discharged or released from such service for such disability.
(r) Effective date of the P&T rating. The term effective date of the P&T rating means the date from which VA considers that the veteran's P&T disability commenced for purposes of VA benefits, as determined by the initial rating decision.
(s) First finds. The term first finds means the effective date of the P&T rating or the date VA first notifies the veteran of that rating, whichever is more advantageous to the child.
(t) Counseling psychologist means the same as provided in § 21.35(k)(1).
(u) Vocational rehabilitation counselor means the same as provided in § 21.35(k)(7).
(v) Additional definitions. The definitions of all terms that are defined in §§ 21.1029 and 21.4200 but that are not defined in this section apply to subpart C of this part.
Duty periods. See § 3.6 of this chapter.
Persons included. See § 3.7 of this chapter.
Philippine and insular forces. See § 3.40 of this chapter.
§ 21.3022   Nonduplication—programs administered by VA.
A person who is eligible for educational assistance under 38 U.S.C. chapter 35 and is also eligible for assistance under any of the provisions of law listed in this paragraph cannot receive such assistance concurrently. The eligible person must choose which benefit he or she will receive for the particular period(s) of training during which education or training is to be pursued. The individual may choose to receive benefits under another program (other than 38 U.S.C. chapter 33) at any time, but not more than once in a calendar month. The individual may choose to receive benefits under 38 U.S.C. chapter 33 at any time, but not more than once during a certified term, quarter, or semester.
(a) 38 U.S.C. chapter 30 (Montgomery GI Bill—Active Duty);
(b) 38 U.S.C. chapter 31 (Veteran Readiness and Employment (VR&E));
(c) 38 U.S.C. chapter 32 (Post-Vietnam Era Veterans' Educational Assistance);
(d) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);
(e) 10 U.S.C. chapter 1606 (Montgomery GI Bill—Selected Reserve);
(f) 10 U.S.C. chapter 1607 (Reserve Educational Assistance Program);
(g) 10 U.S.C. chapter 106a (Educational Assistance Test Program);
(h) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note.);
(i) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note.);
(j) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399); and
(k) Effective August 1, 2011, 10 U.S.C. 510 (National Call to Service).
§ 21.3023   Nonduplication; pension, compensation, and dependency and indemnity compensation.
(a) Child; age 18. A child who is eligible for educational assistance and who is also eligible for pension, compensation or dependency and indemnity compensation based on school attendance must elect whether he or she will receive educational assistance or pension, compensation or dependency and indemnity compensation.
(1) An election of educational assistance either before or after the age of 18 years is a bar to subsequent payment or increased rates or additional amounts of pension, compensation or dependency and indemnity compensation on account of the child based on school attendance on or after the age of 18 years. The bar is equally applicable where the child has eligibility from more than one parent.
(2) Payment of pension, compensation or dependency and indemnity compensation to or on account of a child after his or her 18th birthday does not bar subsequent payments of educational assistance.
(3) An election of educational assistance will not preclude the allowance of pension, compensation, or dependency and indemnity compensation based on school attendance for periods, including vacation periods, prior to the commencement of educational assistance.
(b) Child; under 18 or helpless. Educational assistance allowance or special restorative training allowance may generally be paid concurrently with pension, compensation or dependency and indemnity compensation for a child under the age of 18 years or for a helpless child based on the service of one or more parents. Where, however, entitlement is based on the death of more than one parent in the same parental line, concurrent payments in two or more cases may not be authorized if the death of one such parent occurred on or after June 9, 1960. In the latter cases, an election of educational assistance and pension, compensation or dependency and indemnity compensation in one case does not preclude a reelection of benefits before attaining age 18 or while helpless based on the service of another parent in the same parental line.
(c) Child; election. An election by a child under this section must be submitted to VA in writing.
(1) Except as provided in paragraph (c)(2) of this section, an election to receive Survivors' and Dependents' Educational Assistance (DEA) is final when the eligible child commences a program of education under DEA (38 U.S.C. chapter 35). Commencement of a program of education under DEA will be deemed to have occurred for VA purposes on the date the first payment of DEA educational assistance is made, as evidenced by negotiation of the first check or receipt of the first payment by electronic funds transfer.
(2) An election based on erroneous information furnished by an authorized representative of the Department of Veterans Affairs is not considered final.
(3) A child other than a helpless child, whose eligibility was based on a finding that the veteran had a permanent total service-connected disability and who commenced a program of education under DEA may not thereafter qualify as a dependent for disability compensation purposes if the veteran is later found to be less than permanently and totally disabled, or for pension, compensation or dependency and indemnity compensation after the veteran's death.
(d) Spouse or surviving spouse. Educational assistance allowance may be paid for an eligible spouse or surviving spouse concurrently with pension, compensation or dependency and indemnity compensation.
Discontinuance. See § 3.503(a)(8) of this chapter.
Concurrent payments. See § 3.707 of this chapter.
Certification. See § 3.807 of this chapter.
§ 21.3024   Nonduplication; Federal Employees' Compensation Act.
(a) Civilian employment. The provisions of this paragraph are applicable to cases where there is eligibility for benefits from the Office of Workers' Compensation Programs, under the Federal Employees' Compensation Act (FECA) based on the disability or death as a result of civilian employment of the veteran from whom eligibility for educational assistance is derived.
(1) Child, spouse or surviving spouse. A person who is eligible for educational assistance and is also eligible for Office of Workers' Compensation Programs benefits, under the Federal Employees' Compensation Act (FECA) must elect which benefit he or she will receive.
(2) Veteran, spouse and child—surviving spouse and child. An eligible person may receive educational assistance notwithstanding that the Office of Workers' Compensation Programs benefits under the Federal Employees' Compensation Act (FECA) are being paid to a veteran, or surviving spouse.
(3) Election. An election of Office of Workers' Compensation Programs benefits, under the Federal employees' Compensation Act (FECA), by or for a child filed on or after July 4, 1966, is a bar to subsequent payments of Department of Veterans Affairs benefits during the period of concurrent eligibility. An election of Office of Workers' Compensation Programs benefits under the Federal Employees' Compensation Act (FECA) by a surviving spouse filed on or after December 1, 1968, is a bar to subsequent payments of Department of Veterans Affairs benefits during the period of concurrent eligibility.
(b) Military service. The provisions of this paragraph are applicable to cases where there is eligibility for benefits from Office of Workers' Compensation Program, under the Federal Employee's Compensation Act (FECA) based on the disability or death as a result of military service by the veteran from whom eligibility for educational assistance is derived.
(1) Child, spouse or surviving spouse. A person who is eligible for educational assistance and is also eligible for Office of Workers' Compensation Programs benefits, under the Federal Employees' Compensation Act (FECA) must elect which benefit he or she will receive. The election may be made at any time.
(2) Veteran, spouse and child—surviving spouse and child. An eligible person may receive educational assistance notwithstanding that the Office of Workers' Compensation Programs benefits, under the Federal Employees' Compensation Act (FECA) are being paid to a veteran, or surviving spouse.
Federal Employees' Compensation. See § 3.708 of this chapter.
§ 21.3025   Nonduplication; Federal programs.
Payment of subsistence allowance and special training allowance is prohibited to an otherwise eligible person—
(a) Who is on active duty and is pursuing a course of education which is being paid for by the Armed Forces (or by the Department of Health and Human Services in the case of the Public Health Service); or
(b) For a unit course or courses which are being paid for under 5 U.S.C. chapter 41.
§ 21.3030   Claims.
The provisions of subpart B of this part apply with respect to submission of a claim for educational assistance under 38 U.S.C. chapter 35, VA actions upon receiving a claim, and time limits connected with claims.
§ 21.3040   Eligibility; child.
(a) Commencement. A program of education or special restorative training may not be afforded prior to the eligible person's 18th birthday or the completion of secondary schooling, whichever is earlier, unless it is determined through counseling that the best interests of the eligible person will be served by entering training at an earlier date and the eligible person has passed:
(1) Compulsory school attendance age under State law; or
(2) His or her 14th birthday and due to physical or mental handicap may benefit by special restorative or specialized vocational training.
(b) Secondary schooling. Completion of secondary schooling means completion of a curriculum offered by a public or private school which satisfies the requirements for a high school diploma or its equivalent—usually completion of the 12th grade in the public school system.
(c) Age limitation for commencement. No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability, or on or before the date the veteran's death occurred, or on or before the 91st day of listing by the Secretary concerned of the member of the Armed Forces on whose service eligibility is claimed as being in one of the missing status categories of § 21.3021 (a)(1)(iv) and (3)(ii).
(d) Termination of eligibility. No person is eligible for educational assistance beyond his or her 31st birthday, except as provided under § 21.3041(g)(2). In no event may educational assistance be provided after the period of entitlement has been exhausted. In an exceptional case special restorative training may be provided in excess of 45 months. See § 21.3300.
§ 21.3041   Periods of eligibility; child.
(a) Eligibility derived from a veteran with a P&T disability. An eligible child's period of eligibility generally begins on the child's 18th birthday, or on the successful completion of the child's secondary schooling, whichever first occurs. The period of eligibility generally ends on the earlier of the date of the child's 26th birthday or the date the veteran is no longer P&T disabled. VA will extend an eligible child's period of eligibility for the reasons listed in paragraphs (g) and (h) of this section. See paragraph (c) of this section if the child serves on duty in the Armed Forces as an eligible child after his or her 18th birthday and before his or her 26th birthday. If the veteran dies while the P&T rating is in effect and before the eligible child's 26th birthday, see paragraph (b) of this section to determine the new period of eligibility. Exceptions to this general period of eligibility are as follows:
(1) Period of eligibility may begin before the child's 18th birthday. The period of eligibility may begin before the eligible child's 18th birthday for one of the reasons in paragraphs (a)(1)(i), (ii), or (iii) of this section. The period of eligibility ends on the earlier of the date the veteran is no longer rated P&T disabled or the date of the child's 26th birthday. See § 21.3135(h) if the veteran is no longer rated P&T disabled.
(i) The child completed compulsory school attendance under applicable State law (see § 21.3040(a) and (b));
(ii) The child is pursuing a course designed to prepare him or her for an examination required or used for entrance into an institution of higher education or a graduate school; or
(iii) The child is beyond his or her 14th birthday and has a physical or mental handicap (see § 21.3040(a)).
(2) Period of eligibility may begin after the child's 18th birthday. A child's period of eligibility may begin after his or her 18th birthday if VA first finds the veteran has a P&T disability after the child's 18th birthday but before the child's 26th birthday. See paragraph (e) of this section if an adopted child becomes eligible through qualifying as the veteran's child after VA first finds the veteran has a P&T disability. See paragraph (f) of this section if a stepchild becomes eligible through qualifying as the veteran's child after VA first finds the veteran is P&T disabled.
(i) Beginning date if the effective date of the initial P&T rating is before the child's 18th birthday and notification to the veteran occurs after the child's 18th birthday and before his or her 26th birthday. If the effective date of the P&T rating is before the child's 18th birthday, and the date of notification to the veteran occurs after the child's 18th birthday but before the child's 26th birthday, the child may elect the beginning date of his or her period of eligibility. (See paragraph (i) of this section for election requirements.) If the child elects a beginning date that is before his or her 18th birthday, the period of eligibility ends the earlier of the date that the veteran is no longer rated P&T disabled, or the date of the child's 26th birthday. If the child elects a beginning date after his or her 18th birthday, the period of eligibility ends the earlier of the date the veteran is no longer rated P&T disabled or 8 years after the beginning date the child elects. (See § 21.3135(h) if the veteran is no longer rated P&T disabled.) The child can elect as a beginning date either—
(A) The date of his or her 18th birthday;
(B) The date he or she completed compulsory school attendance under applicable State law (see § 21.3040(a) and (b)), if that date is on or after the effective date of the P&T rating and before his or her 18th birthday;
(C) The date he or she begins a course designed to prepare him or her for an examination required or used for entrance into an institution of higher education or a graduate school, if that date is on or after the effective date of the P&T rating and before the date of notification to the veteran of the P&T rating. If the child elects the beginning date of enrollment in such course, he or she may not receive educational assistance for pursuit of secondary schooling unless secondary school pursuit is otherwise authorized (see § 21.3040);
(D) The date VA notifies the veteran of the P&T rating; or
(E) Any date between the applicable date described in paragraphs (a)(2)(i)(A) through (C) of this section and the date in paragraph (a)(2)(i)(D) of this section.
(ii) Beginning date if the effective date of the P&T rating is after the child's 18th birthday and before child's 26th birthday. If the effective date of the P&T rating occurs after the child's 18th birthday but before the child's 26th birthday, the child may elect the beginning date of his or her period of eligibility. (See paragraph (i) of this section for election requirements.) The period of eligibility ends the earlier of the date the veteran is no longer rated P&T disabled, or 8 years after the beginning date the child elects. (See § 21.3135(h) if the veteran is no longer rated P&T disabled.) The child can elect as a beginning date—
(A) The effective date of the P&T rating;
(B) The date VA notifies the veteran of the veteran's P&T rating; or
(C) Any date in between.
(b) Eligibility derived as the result of veteran's death. An eligible child's period of eligibility begins on the child's 18th birthday, or on the successful completion of the child's secondary schooling, whichever first occurs. The period of eligibility ends on the child's 26th birthday. VA will extend an eligible child's period of eligibility for reasons shown in paragraphs (g) and (h) of this section. See paragraph (c) of this section if the child serves on duty in the Armed Forces as an eligible child after his or her 18th birthday and before his or her 26th birthday. Exceptions to this general period of eligibility are as follows:
(1) Period of eligibility may begin before the child's 18th birthday. The period of eligibility may begin before the eligible child's 18th birthday for one of the reasons in paragraphs (i), (ii), or (iii) of this paragraph. The ending date of the period of eligibility is the child's 26th birthday.
(i) The child completed compulsory school attendance under applicable State law (see § 21.3040(a) and (b));
(ii) The child is pursuing a course designed to prepare him or her for an examination required or used for entrance into an institution of higher education or a graduate school; or
(iii) The child is beyond his or her 14th birthday and has a physical or mental handicap (see § 21.3040(a)).
(2) Period of eligibility may begin after the child's 18th birthday. If the veteran's death occurs after the child's 18th birthday but before the child's 26th birthday, the child may elect the beginning date of his or her period of eligibility. The period of eligibility ends 8 years after the beginning date the child elects. See paragraph (i) of this section for election requirements. VA may extend the period of eligibility for one of the reasons shown in paragraph (g) or (h) of this section. See paragraph (c) of this section if the child serves in the Armed Forces as an eligible person after his or her 18th birthday and before his or her 26th birthday. The child can elect as a beginning date any date between the—
(i) Date of the veteran's death; or
(ii) Date of VA's decision that the veteran's death was service-connected.
(c) Period of eligibility for a child who serves on duty in the Armed Forces as an eligible person. If the child serves on duty in the Armed Forces as an eligible person (as defined in § 21.3021(a)(1)) after the child's 18th birthday and before the child's 26th birthday, the child is eligible for a modified ending date based on the provisions of this paragraph. Under the provisions of this paragraph, the period of eligibility ends 8 years after the date of the child's first discharge or release from such duty, or the child's 31st birthday, whichever is earlier. VA may extend the ending date for one of the reasons shown in paragraph (g) of this section. See paragraph (h) of this section if the child is ordered to active duty as a reservist.
(d) Eligibility derived from a parent who is listed by the Armed Forces as missing in action, captured in the line of duty, or forcibly detained or interned in line of duty by a foreign government or power. (1) If a child establishes eligibility through the provisions of § 21.3021(a)(1)(iv) after his or her 18th birthday but before his or her 26th birthday, the period of eligibility will end on the earliest of the following dates:
(i) When the parent is no longer listed as described in § 21.3021(a)(1)(iv);
(ii) Eight years after the date on which the child becomes eligible under such provisions; or
(iii) The child's 31st birthday.
(2) VA may extend the ending date for one of the reasons shown in paragraphs (g) or (h) of this section. See § 21.3135(i) if the child is enrolled in an educational institution and the child's ending date is based on paragraph (d)(1)(i) of this section. See paragraph (c) of this section if the child serves in the Armed Forces as an eligible person after his or her 18th birthday and before his or her 26th birthday.
(e) Adopted child qualifies after VA firsts finds the veteran P&T disabled. If an adopted child becomes eligible through qualifying as the veteran's child (see 38 CFR 3.57(c)) and the date the child so becomes eligible is after VA first finds the veteran is P&T disabled, the beginning date of eligibility is the date determined pursuant to paragraphs (a) through (d) of this section, but in no event before the date the adopted child qualifies as the veteran's child under § 3.57(c) of this chapter. The ending date is the child's 26th birthday. VA may extend the period of eligibility for one of the reasons in paragraph (g) or (h) of this section. See paragraph (c) of this section if the child serves on duty in the Armed Forces as an eligible person.
(f) Stepchild qualifies after VA first finds the veteran P&T disabled. If a stepchild becomes eligible through qualifying as the veteran's child and a member of the veteran's household after VA first finds the veteran is P&T disabled, the beginning date of the period of eligibility is the date determined pursuant to paragraphs (a) through (d) of this section, but in no event before the date he or she becomes the veteran's stepchild and a member of the veteran's household. The ending date of the period of eligibility is the stepchild's 26th birthday. VA may extend the ending date for one of the reasons in paragraphs (g) or (h) of this section. See paragraph (c) of this section for the ending date of the period of eligibility if the stepchild serves on active duty in the Armed Forces as an eligible person. See § 21.3135(g) for award discontinuance dates if the veteran and the stepchild's natural or adopted parent divorce or the stepchild ceases to be a member of the veteran's household.
(g) Extensions to ending dates. (1) If an eligible child suspends pursuit of his or her program due to conditions that VA determined were beyond the child's control, VA may extend the period of eligibility ending date (see § 21.3043). VA cannot grant an extension beyond age 31 to those children whose period of eligibility ending date (as determined under paragraphs (a) through (f) of this section) is subject to an age limitation.
(2) If an eligible child's period of eligibility ending date (as determined under paragraphs (a) through (f), or (h) of this section) occurs while the child is enrolled in an educational institution, VA may extend the period of eligibility (extensions may be made beyond age 31)—
(i) To the end of the quarter or semester, for a child enrolled in an educational institution that regularly operates on the quarter or semester system; or
(ii) To the end of the course, not to exceed 12 weeks, for a child who completed a major portion of a course while enrolled in an educational institution that operates under other than a quarter or semester system.
(3) If an eligible child's period of eligibility ending date (as determined under paragraphs (a) through (f), or (h) of this section) occurs while the child is pursuing training in a training establishment (as defined in § 21.4200(c)), VA cannot extend the ending date.
(h) Notwithstanding any other provision of this section, if during an eligible child's period of eligibility, as determined in paragraphs (a) through (g) of this section, but after September 10, 2001, an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty VA will grant an extension of the child's period of eligibility. The extension will be equal to the length of the period served plus an additional 4 months for each qualifying period and applies if after September 10, 2001, the eligible child is—
(i) Ordered to serve on active duty under section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10, United States Code; or
(ii) Involuntarily ordered to full-time National Guard duty under section 502(f) of title 32, United States Code.
(i) Elections. (1) VA must provide written notice to certain eligible children informing them of their right to elect the beginning date of their period of eligibility. The written notice must identify the beginning dates the child may choose from and must contain a statement that the child must make the election within 60 days of the date of the written notice. An eligible child may elect his or her beginning date if—
(i) The effective date of the P&T rating is before the child's 18th birthday, and date of the notification to the veteran from whom the child derives eligibility occurs after the child's 18th birthday but before the child's 26th birthday (see paragraph (a)(2)(i) of this section);
(ii) The effective date of the P&T rating, or the date of notification to the veteran from whom the child derives eligibility, occurs after the child's 18th birthday but before the child's 26th birthday (see paragraph (a)(2)(ii) of this section);
(iii) The veteran's death occurs after the child's 18th birthday but before the child's 26th birthday (see paragraph (b)(2) of this section);
(iv) The child makes such election within 60 days of VA's written notice to the child informing him or her of the right to elect his or her beginning date; and
(v) The child's election is in accordance with the choices VA identified in the written notice described in paragraph (i)(1) of this section.
(2) If the child does not elect a beginning date within 60 days of VA's written notice informing him or her of the right to elect a beginning date, the period of eligibility beginning date will be whichever of the following applies—
(i) The date of VA's decision that the veteran has a P&T disability; or
(ii) The date of VA's decision that the veteran's death is service-connected.
(3) If upon review of the child's application VA determines the child is entitled to and eligible for an immediate award of educational assistance under 38 U.S.C. chapter 35, VA will for purposes of such award—
(i) Consider the beginning date of the child's period of eligibility to be the date of VA's decision that the—
(A) Veteran has a P&T disability in the case of a child whose eligibility is derived from a veteran with a P&T disability; or
(B) Veteran's death is service-connected in the case of a child whose eligibility is derived due to the veteran's death.
(ii) Notify the child of his or her right to elect a beginning date in accordance with paragraph (i)(1) of this section.
(iii) Adjust the child's beginning date based on the child's election if the child makes an election within 60 days after VA's written notice in accordance with paragraph (i)(1) of this section.
§ 21.3042   Service with Armed Forces.
(a) No educational assistance under 38 U.S.C. chapter 35 may be provided an otherwise eligible person during any period he or she is on duty with the Armed Forces. See § 21.3021 (e) and (f). This does not apply to brief periods of active duty for training. See § 21.3135(f).
(b) If the eligible person served with the Armed Forces, his or her discharge or release from each period of service must have been under conditions other than dishonorable.
§ 21.3043   Suspension of program; child.
For an eligible person who suspends his program due to conditions determined by the Department of Veterans Affairs to have been beyond his or her control the period of eligibility may, upon his request, be extended by the number of months and days intervening the date the suspension began and the date the reason for suspension ceased to exist. The burden of proof is on the eligible person to establish that suspension of a program was due to conditions beyond his or her control. The period of suspension shall be considered to have ended as of the date of the person's first available opportunity to resume training after the condition which caused it ceased to exist. The following circumstances may be considered as beyond the eligible person's control:
(a) While in active pursuit of a program of education he or she is appointed by the responsible governing body of an established church, officially charged with the selection and designation of missionary representatives, in keeping with its traditional practice, to serve the church in an official missionary capacity and is thereby prevented from pursuit of his or her program of studies.
(b) Immediate family or financial obligations beyond his or her control require the eligible person to take employment, or otherwise preclude pursuit of his or her program.
(c) Unavoidable conditions arising in connection with the eligible person's employment which preclude pursuit of his or her program.
(d) Pursuit of his or her program is precluded because of the eligible person's own illness or illness or death in his or her immediate family.
(e) Active duty, including active duty for training in the Armed Forces.
§ 21.3044   Entitlement.
(a) Limitations on entitlement. Each eligible person in entitled to educational assistance not in excess of 45 months, or the equivalent thereof in part-time training. The Department of Veterans Affairs will not authorize an extension of entitlement except as provided in paragraph (c) of this section. The period of entitlement when added to education or training received under any or all of the laws cited in § 21.4020 will not exceed 48 months of full-time educational assistance. The period of entitlement will not be reduced by any period during which employment adjustment allowance was paid after the eligible person completes a period of rehabilitation and reaches a point of employability.
(b) Continuous pursuit is not required. The 45-month period of entitlement is any 45 months within the period of eligibility. The eligible person is not required to pursue his or her program for 45 consecutive months.
(c) Exceeding the 45 months limitation. The 45 months limitation may be exceeded only in the following cases:
(1) Where no charge against the entitlement is made based on a course or courses pursued by a spouse or surviving spouse under the special assistance for the educationally disadvantaged program (See § 21.3344(d); or
(2) Where special restorative training authorized under § 21.3300 exceeds 45 months.
§ 21.3045   Entitlement charges.
VA will make record-purpose charges against an eligible person's 38 U.S.C. chapter 35 entitlement only when required by this section. Charges for institutional training will be based upon the principle that an eligible person who trains full time for 1 day should be charged 1 day of entitlement.
(a) No entitlement charge for eligible persons receiving tutorial assistance. VA will make no charge against the entitlement of an eligible person for tutorial assistance received in accordance with § 21.4236.
(b) Entitlement charges for elementary and secondary education. (1) When an eligible spouse or surviving spouse is pursuing a course leading to a secondary school diploma or an equivalency certificate as described in § 21.3344, there are two sets of circumstances which will always result in VA's making no charge against his or her entitlement. These are as follows:
(i) Either the eligible spouse or surviving spouse completed training during the period beginning on October 1, 1980, and ending on August 14, 1989, and remained continuously enrolled from October 1, 1980, through the time the spouse or surviving spouse either completed training or August 14, 1989, whichever is earlier; or
(ii) The eligible spouse or surviving spouse completed training before August 15, 1989, and received educational assistance based upon the tuition and fees charged for the course.
(2) When an eligible spouse or surviving spouse is pursuing a course leading to a secondary school diploma or an equivalency certificate as described in § 21.3344, the following circumstances will always result in VA's making a charge against his or her entitlement unless the provisions of paragraph (d) of this section would exempt the spouse or surviving spouse from receiving an entitlement charge.
(i) The spouse or surviving spouse elects to receive dependents' educational assistance at the rate described in § 21.3131(a), and
(ii) Either was not pursuing a course leading to a secondary school diploma or equivalency certificate on October 1, 1980, or has not remained continuously enrolled in such a course since October 1, 1980.
(3) When an eligible person pursues refresher, remedial or deficiency training before August 15, 1989, the following provisions govern the charge against the entitlement.
(i) VA will not make a charge against the entitlement of an eligible spouse or surviving spouse.
(ii) VA will make a charge against the entitlement of an eligible child.
(4) The following provisions apply to an eligible person for training received after August 14, 1989. When he or she is pursuing a course leading to a secondary school diploma or equivalency certificate or refresher, remedial or deficiency training.
(i) VA will make no charge against the entitlement of an eligible person for the first five months of full time pursuit (or its equivalent in part-time pursuit).
(ii) VA will make a charge against the entitlement of an eligible person for pursuit in excess of the pursuit described in paragraph (b)(4)(i) unless the provisions of paragraph (d) of this section would exempt the eligible person from receiving an entitlement charge.
(c) Other courses for which entitlement will be charged. Except when the requirements of paragraph (d) of this section are met, VA will make a charge against the period of entitlement of—
(1) An eligible person for pursuit of a program of apprenticeship or other on-job training;
(2) A spouse or surviving spouse for pursuit of a correspondence course; or
(3) An eligible person for the pursuit of any course not described in paragraph (a) or (b) of this section.
(d) Exemption from entitlement charge. (1) VA will not make a charge against the entitlement of an eligible person for the pursuit of any course or courses when the requirements of paragraphs (d)(1)(i) and (ii) of this section are met, by VA finding that the eligible person—
(i) Had to discontinue pursuit of the course or courses as a result of being—
(A) Ordered, in connection with the Persian Gulf War by orders dated before September 11, 2001, to serve on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or under former 10 U.S.C. 672(a), 672(d), 672(g), 673, or 673(b) (redesignated effective December 1, 1994, as 10 U.S.C. 12301(a), 12301(d), 12301(g), 12302, and 12304, respectively);
(B) Ordered, by orders dated after September 10, 2001, to serve on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304; or
(C) Involuntarily ordered, by orders dated after September 10, 2001, to full-time National Guard duty under 32 U.S.C. 502(f).
(ii) Failed to receive credit or training time toward completion of the eligible person's approved educational, professional or vocational objective as a result of having to discontinue, for a reason described in paragraph (d)(1)(i) of this section, his or her course pursuit.
(2) The period for which VA will not make a charge against entitlement shall not exceed the portion of the period of enrollment in the course or courses for which the eligible person failed to receive credit or with respect to which the eligible person lost training time.
(e) Determining entitlement charge. The provisions of this paragraph apply to all courses except those courses for which VA is not making a charge against the eligible person's entitlement, apprenticeship or other on-job training, correspondence courses, and courses offered solely through independent study.
(1) After making any adjustments required by paragraph (e)(3) of this section, VA will make a charge against entitlement—
(i) On the basis of total elapsed time (one day for each day of pursuit) if the eligible person is pursuing the program of education on a full-time basis,
(ii) On the basis of a proportionate rate of elapsed time, if the eligible person is pursuing a program of education on a three-quarter, one-half or less than one-half time basis. For the purpose of this computation, training time which is less than one-half, but more than one-quarter time, will be treated as though it were one-quarter time training.
(2) VA will compute elapsed time from the commencing date of enrollment to date of discontinuance. If the eligible person changes his or her training time after the commencing date of enrollment, VA will—
(i) Divide the enrollment period into separate periods of time during which the eligible person's training time remains constant; and
(ii) Compute the elapsed time separately for each time period.
(3) An eligible person may concurrently enroll in refresher, remedial or deficiency training for which paragraph (b)(3) or (b)(4)(i) of this section requires no charge against entitlement and in a course or courses for which paragraph (b)(2) or (b)(4)(ii) or (c) of this section requires a charge against entitlement. When this occurs, VA will charge entitlement for the concurrent enrollment based only on pursuit of the courses described in paragraph (b)(2) or (b)(4)(ii) or (c) of this section, measured in accordance with §§ 21.4270 through 21.4275 of this part, as appropriate.
(f) Entitlement charge for pursuit solely by independent study. For enrollments in terms, quarters, or semesters that begin after June 30, 1993, VA will make charges against the entitlement of an eligible person in the manner prescribed by paragraph (e) of this section, if he or she is pursuing a program of education solely by independent study. For all other enrollments where the eligible person is pursuing a program of education solely by independent study, the computation will be made as though the eligible person's training were one-quarter time.
(g) Entitlement charge for apprenticeship or other on-job training. For each month that an eligible person is paid a monthly educational assistance allowance while undergoing apprenticeship or other on-job training, including months in which the eligible person fails to complete 120 hours of training, VA will make a record-purpose charge against 38 U.S.C. chapter 35 entitlement, if any, as follows:
(1) For training pursued before October 1, 2005, VA will reduce chapter 35 entitlement by one month for each month of benefits paid.
(2) For training pursued on or after October 1, 2005, VA will reduce chapter 35 entitlement proportionately based on the percentage rate (rounded to the nearest percentage) determined by dividing the amount of the training assistance paid for the month by the monthly educational assistance payable for full-time enrollment in an educational institution.
(h) Entitlement charge for correspondence courses. The charge against entitlement of a spouse or surviving spouse for pursuit of a course exclusively by correspondence will be 1 month for each of the following amounts paid as an educational assistance allowance:
(1) $788.00, paid after June 30, 2004, and before October 1, 2004;
(2) $803.00, paid after September 30, 2004, and before October 1, 2005;
(3) $827.00, paid after September 30, 2005, and before October 1, 2006;
(4) $860.00, paid after September 30, 2006, and before October 1, 2007;
(5) $881.00, paid after September 30, 2007, and before October 1, 2008; and
(6) $915.00, paid after September 30 2008.
(i) Overpayment cases. VA will make a charge against entitlement for an overpayment only if the overpayment is discharged in bankruptcy, is waived and is not recovered, or is compromised.
(1) If the overpayment is discharged in bankruptcy or is waived and is not recovered, the charge against entitlement will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).
(2) If the overpayment is compromised and the compromise offer is less than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).
(3) If the overpayment is compromised and the compromise offer is equal to or greater than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be determined by—
(i) Subtracting from the sum paid in the compromise offer the amount attributable to interest, administrative costs of collection, court costs and marshal fees,
(ii) Subtracting the remaining amount of the overpayment balance determined in paragraph (i)(3)(i) of this section from the amount of the original overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees),
(iii) Dividing the result obtained in paragraph (h)(3)(ii) of this section by the amount of the original debt (exclusive of interest, administrative costs of collection, court costs and marshal fees), and
(iv) Multiplying the percentage obtained in paragraph (h)(3)(iii) of this section by the amount of the entitlement otherwise chargeable for the period of the original overpayment.
(j) Interruption to conserve entitlement. An eligible person may not interrupt a certified period of enrollment for the purpose of conserving entitlement. An educational institution may not certify a period of enrollment for a fractional part of the normal term, quarter or semester, if the eligible person is enrolled for the term, quarter or semester. VA will make a charge against entitlement for the entire period of certified enrollment, if the eligible person is otherwise eligible for benefits, except when benefits are interrupted under any of the following conditions:
(1) Enrollment is actually terminated;
(2) The eligible person cancels his or her enrollment, and does not negotiate an educational benefits check for any part of the certified period of enrollment;
(3) The eligible person interrupts his or her enrollment at the end of any term, quarter, or semester within the certified period of enrollment, and does not negotiate a check for educational benefits for the succeeding term, quarter, or semester;
(4) The eligible person requests interruption or cancellation for any break when a school was closed during a certified period of enrollment, and VA continued payments under an established policy based upon an Executive Order of the President or an emergency situation. Whether the eligible person negotiated a check for educational benefits for the certified period is immaterial.
(k) Education loan after otherwise applicable delimiting date—spouse or surviving spouse. VA will make a charge against the entitlement of a spouse or surviving spouse who receives an education loan pursuant to § 21.4501(c) at the rate of 1 day for each day of entitlement that would have been used had the spouse or surviving spouse been in receipt of educational assistance allowance for the period for which the loan was granted.