55052 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 5 

RIN 2900–AL94 

Dependents and Survivors 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to reorganize and 

rewrite in plain language general 

provisions applicable to its 

compensation and pension regulations, 

including those relating to dependents 

and survivors of veterans and other VA 

claimants and beneficiaries. These 

revisions are proposed as part of VA’s 

rewrite and reorganization of all of its 

compensation and pension rules in a 

logical, claimant-focused, and userfriendly format. The intended effect of 

the proposed revisions is to assist 

claimants and VA personnel in locating 

and understanding these provisions. 

DATES: Comments must be received by 

VA on or before November 20, 2006. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to Director, Regulations 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AL94—Dependents and Survivors.’’ 

Copies of comments received will be 

available for public inspection in the 

Office of Regulation Policy and 

Management, Room 1063B, between the 

hours of 8 a.m. and 4:30 p.m., Monday 

through Friday (except holidays). Please 

call (202) 273–9515 for an appointment. 

In addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at http:// 

www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Bob 

White, Acting Chief, Regulations 

Rewrite Project (00REG2), Department 

of Veterans Affairs, 810 Vermont 

Avenue, NW., Washington, DC 20420, 

(202) 273–9515. 

SUPPLEMENTARY INFORMATION: The 

Secretary of Veterans Affairs has 

established an Office of Regulation 

Policy and Management to provide 

centralized management and 

coordination of VA’s rulemaking 

process. One of the major functions of 

this office is to oversee a Regulation 

Rewrite Project (the Project) to improve 

the clarity and consistency of existing 

VA regulations. The Project responds to 

a recommendation made in the October 

2001 ‘‘VA Claims Processing Task 

Force: Report to the Secretary of 

Veterans Affairs.’’ The Task Force 

recommended that the compensation 

and pension regulations be rewritten 

and reorganized in order to improve 

VA’s claims adjudication process. 

Therefore, the Project began its efforts 

by reviewing, reorganizing and 

redrafting the content of the regulations 

in 38 CFR part 3 governing the 

compensation and pension program of 

the Veterans Benefits Administration. 

These regulations are among the most 

difficult VA regulations for readers to 

understand and apply. 

Once rewritten, the proposed 

regulations will be published in several 

portions for public review and 

comment. This is one such portion. It 

includes proposed rules regarding 

dependents in general; the effect of 

dependency changes on benefits; and 

surviving spouse, child and parent 

status. After review and consideration of 

public comments, final versions of these 

proposed regulations will ultimately be 

published in a new part 5 in 38 CFR. 

Outline 

Overview of New Part 5 Organization 

Overview of Proposed Subpart D 

Organization 

Table Comparing Current Part 3 Rules With 

Proposed Part 5 Rules 

Content of Proposed Regulations 

General Dependency Provisions 

5.180 Evidence of dependency—award of, 

or an increase in, VA benefits 

5.181 Evidence of dependency—reduction 

or discontinuance of VA benefits 

5.182 Beneficiary’s responsibility to report 

changes in status of dependents 

5.183 Effective date for additional benefits 

based on the existence of a dependent 

5.184 Effective date of reduction or 

discontinuance of VA benefits due to the 

death of a beneficiary’s dependent 

5.1850–5.189 [Reserved] 

Marriage, Divorce, and Annulment 

5.190 Status as a spouse 

5.191 Marriages VA recognizes as valid 

5.192 Evidence of marriage 

5.193 Proof of marriage termination where 

evidence is in conflict or termination is 

protested 

5.194 Acceptance of divorce decrees 

5.195 Void marriages 

5.196 Evidence of void or annulled 

marriages 

5.197 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to marriage 

or remarriage 

5.198 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to divorce 

or annulment 

5.199 [Reserved] 

Surviving Spouse Status 

5.200 Status as a surviving spouse 

5.201 Surviving spouse status based on a 

deemed-valid marriage 

5.202 Effect of Federal court decisions on 

remarriage determinations 

5.203 Effect of remarriage on a surviving 

spouse’s benefits 

5.204 Effective date of discontinuance of 

VA benefits to a surviving spouse who 

holds himself, or herself, out as the 

spouse of another person 

5.205 Effective date of resumption of 

benefits to a surviving spouse due to 

termination of a remarriage 

5.206 Effective date of resumption of 

benefits to a surviving spouse who stops 

holding himself, or herself, out as the 

spouse of another 5.207–5.219

[Reserved] 

Child Status 

5.220 Status as a child for VA benefit 

purposes 

5.221 Evidence to establish a parent-natural 

child relationship 

5.222 Adoption arrangements recognized by 

VA 

5.223 Child adopted after a veteran’s death 

recognized as the veteran’s child 

5.224 Child status despite adoption out of 

a veteran’s family 

5.225 Child status based on adoption into a 

veteran’s family under foreign law 

5.226 Child status based on being a 

veteran’s stepchild 

5.227 Child status based on permanent 

incapacity for self-support 

5.228 Exceptions applicable to termination 

of child status based on marriage of the 

child 

5.229 Proof of age and birth 

5.230 Effective date of award of pension or 

dependency and indemnity 

compensation to, or based on the 

existence of, a child born after the 

veteran’s death 

5.231 Effective date of reduction or 

discontinuance—child reaches age 18 or 

23 

5.232 Effective date of reduction or 

discontinuance—terminated adoptions 

5.233 Effective date of reduction or 

discontinuance—stepchild no longer a 

member of the veteran’s household 

5.234 Effective date of an award, reduction, 

or discontinuance of benefits based on 

child status due to permanent incapacity 

for self-support 

5.235 Effective date of an award of benefits 

due to termination of a child’s marriage 

5.236–5.239 [Reserved] 

Parent Status 

5.240 Status as a veteran’s parent 

5.241–5.249 [Reserved] 

Note Concerning § 3.503(a)(2) 

Note Concerning § 3.400(w) 

Endnote Regarding Amendatory Language 

Paperwork Reduction Act 

Regulatory Flexibility Act 

Executive Order 12866 

Unfunded Mandates 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55053 

Catalog of Federal Domestic Assistance 

Numbers 

List of Subjects in 38 CFR Part 5 

Overview of New Part 5 Organization 

We plan to organize the part 5 

regulations so that all provisions 

governing a specific benefit are located 

in the same subpart, with general 

provisions pertaining to all 

compensation and pension benefits also 

grouped together. We believe this 

organization will allow claimants, 

beneficiaries, and their representatives, 

as well as VA personnel, to find 

information relating to a specific benefit 

more quickly than the organization 

provided in current part 3. 

The first major subdivision would be 

‘‘Subpart A—General Provisions.’’ It 

would include information regarding 

the scope of the regulations in new part 

5, general definitions and general policy 

provisions for this part. This subpart 

was published as proposed on March 

31, 2006. See 71 FR 16464. 

‘‘Subpart B—Service Requirements for 

Veterans’’ would include information 

regarding a veteran’s military service, 

including the minimum service 

requirement, types of service, periods of 

war, and service evidence requirements. 

This subpart was published as proposed 

on January 30, 2004. See 69 FR 4820. 

‘‘Subpart C—Adjudicative Process, 

General’’ would inform readers about 

claims and benefit application filing 

procedures, VA’s duties, rights and 

responsibilities of claimants and 

beneficiaries, general evidence 

requirements, and general effective 

dates for new awards, as well as 

revision of decisions and protection of 

VA ratings. This subpart will be 

published as three separate Notices of 

Proposed Rulemaking (NPRM)s due to 

its size. The first, concerning the duties 

of VA and the rights and responsibilities 

of claimants and beneficiaries, was 

published as proposed on May 10, 2005. 

See 70 FR 24680. 

‘‘Subpart D—Dependents and 

Survivors’’ would inform readers how 

VA determines whether an individual is 

a dependent or a survivor for purposes 

of determining eligibility for VA 

benefits. It would also provide the 

evidence requirements for these 

determinations. This subpart is the 

subject of this document. 

‘‘Subpart E—Claims for Service 

Connection and Disability 

Compensation’’ would define serviceconnected disability compensation and 

service connection, including direct and 

secondary service connection. This 

subpart would inform readers how VA 

determines service connection and 

entitlement to disability compensation. 

The subpart would also contain those 

provisions governing presumptions 

related to service connection, rating 

principles, and effective dates, as well 

as several special ratings. This subpart 

will be published as three separate 

NPRMs due to its size. The first, 

concerning presumptions related to 

service connection, was published as 

proposed on July 27, 2004. See 69 FR 

44614. 

‘‘Subpart F—Nonservice-Connected 

Disability Pensions and Death 

Pensions’’ would include information 

regarding the three types of nonserviceconnected pension: Improved Pension, 

Old-Law Pension, and Section 306 

Pension. This subpart would also 

include those provisions that state how 

to establish entitlement to Improved 

Pension, and the effective dates 

governing each pension. This subpart 

will be published as two separate 

NPRMs due to its size. The portion 

concerning Old-Law Pension, Section 

306 Pension, and elections of Improved 

Pension was published as proposed on 

December 27, 2004. See 69 FR 77578. 

‘‘Subpart G—Dependency and 

Indemnity Compensation, Death 

Compensation, Accrued Benefits, and 

Special Rules Applicable Upon Death of 

a Beneficiary’’ would contain 

regulations governing claims for 

dependency and indemnity 

compensation (DIC); death 

compensation; accrued benefits; benefits 

awarded, but unpaid at death; and 

various special rules that apply to the 

disposition of VA benefits, or proceeds 

of VA benefits, when a beneficiary dies. 

This subpart would also include related 

definitions, effective-date rules, and 

rate-of-payment rules. This subpart will 

be published as two separate NPRMs 

due to its size. The portion concerning 

accrued benefits, special rules 

applicable upon the death of a 

beneficiary, and several effective-date 

rules, was published as proposed on 

October 1, 2004. See 69 FR 59072. The 

portion concerning DIC benefits and 

general provisions relating to proof of 

death and service-connected cause of 

death was published as proposed on 

October 21, 2005. See 70 FR 61326. 

‘‘Subpart H—Special and Ancillary 

Benefits for Veterans, Dependents, and 

Survivors’’ would pertain to special and 

ancillary benefits available, including 

benefits for children with various birth 

defects. 

‘‘Subpart I—Benefits for Certain 

Filipino Veterans and Survivors’’ would 

pertain to the various benefits available 

to Filipino veterans and their survivors. 

‘‘Subpart J—Burial Benefits’’ would 

pertain to burial allowances. 

‘‘Subpart K—Matters Affecting the 

Receipt of Benefits’’ would contain 

provisions regarding bars to benefits, 

forfeiture of benefits, and renouncement 

of benefits. This subpart was published 

as proposed on May 31, 2006. See 71 FR 

31062. 

‘‘Subpart L—Payments and 

Adjustments to Payments’’ would 

include general rate-setting rules, 

several adjustment and resumption 

regulations, and election-of-benefit 

rules. Because of its size, proposed 

regulations in subpart L will be 

published in two separate NPRMs. 

The final subpart, ‘‘Subpart M—

Apportionments and Payments to 

Fiduciaries and Incarcerated 

Beneficiaries,’’ would include 

regulations governing apportionments, 

benefits for incarcerated beneficiaries, 

and guardianship. 

Some of the regulations in this NPRM 

cross-reference other compensation and 

pension regulations. If those regulations 

have been published in this or earlier 

NPRMs for the Project, we cite the 

proposed part 5 section. We also 

include, in the relevant portion of the 

Supplementary Information, the Federal 

Register page where a proposed part 5 

section published in an earlier NPRM 

may be found. However, where a 

regulation proposed in this NPRM 

would cross-reference a proposed part 5 

regulation that has not yet been 

published, we cite to the current part 3 

regulation that deals with the same 

subject matter. The current part 3 

section we cite may differ from its 

eventual part 5 counterpart in some 

respects, but we believe this method 

will assist readers in understanding 

these proposed regulations where no 

part 5 counterpart has yet been 

published. If there is no part 3 

counterpart to a proposed part 5 

regulation that has not yet been 

published, we have inserted 

‘‘[regulation that will be published in a 

future Notice of Proposed Rulemaking]’’

where the part 5 regulation citation 

would be placed. 

Because of its large size, proposed 

part 5 will be published in a number of 

NPRMs, such as this one. VA will not 

adopt any portion of part 5 as final until 

all of the NPRMs have been published 

for public comment. 

In connection with this rulemaking, 

VA will accept comments relating to a 

prior rulemaking issued as a part of the 

Project, if the matter being commented 

on relates to both NPRMs. 

Overview of Proposed Subpart D 

Organization 

This NPRM pertains to regulations 

governing dependents and survivors of 


sroberts on PROD1PC70 with PROPOSALS
55054 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

veterans and of other claimants and 

beneficiaries. These regulations would 

be contained in proposed Subpart D of 

new 38 CFR part 5. Although these 

regulations have been substantially 

restructured and rewritten for greater 

clarity and ease of use, most of the basic 

concepts contained in these proposed 

regulations are the same as in their 

existing counterparts in 38 CFR part 3. 

However, a few substantive changes are 

proposed. 

Table Comparing Current Part 3 Rules 

With Proposed Part 5 Rules 

The following table shows the 

relationship between the current 

regulations in part 3 and the proposed 

regulations contained in this NPRM: 

Proposed part 5 section or paragraph 

Based in whole or in 

part on 38 CFR part 3 

section or paragraph 

5.180(a) ..................... 3.213, 1st sentence. 

5.180(b) ..................... 3.204(a)(1). 

5.180(c) ..................... 3.204(a)(2). 

5.180(d) ..................... 3.204(b). 

5.180(e) ..................... 3.204(c). 

5.181(a) ..................... New. 

5.181(b) ..................... 3.213(a) and (c). 

5.181(c) ..................... 3.213(b). 

5.182 ......................... New and 3.213(a), 

3.277(b), and 

3.660(a)(1). 

5.183(a) ..................... 3.401(b)(1)(ii) and 

3.660(c), second 

sentence. 

5.183(b)(1) ................ 3.401(b)(1)(i), 

3.403(a)(5), 

3.660(c) first sentence. 

5.183(b)(2) ................ 3.401(b)(3). 

5.183(b)(3) ................ 3.401(b)(4). 

5.183(c) ..................... 3.401(b)(2). 

5.184 ......................... 3.500(g)(2)(ii) and 

3.660(a)(2), last 

sentence. 

5.190 ......................... 3.50(a). 

5.191 ......................... 3.1(j). 

5.192(a) ..................... New. 

5.192(b) ..................... 3.205(b). 

5.192(c), except for 

(c)(6)(i).

3.205(a). 

5.192(c)(6)(i) ............. New. 

5.193 ......................... 3.205(b), last sentence. 

5.194(a) ..................... First sentence of 

3.206. 

5.194(b)(1) and (2) .... 3.206(a). 

5.194(b)(3) ................ New. 

5.194(c)(1) ................. 3.206(b). 

5.194(c)(2) ................. 3.206(c). 

5.195 ......................... New. 

5.196(a) ..................... 3.207(a). 

5.196(b) ..................... 3.207(b). 

5.197(a) ..................... New. 

5.197(b)(1) ................ 3.500(n)(1). 

5.197(b)(2) ................ 3.500(n)(2)(ii). 

5.198(a) ..................... New. 

5.198(b) ..................... 3.501(d)(2). 

5.200(a) ..................... 3.50(b). 

5.200(b)(1)(i) ............. 3.53(a), first sentence. 

Proposed part 5 section or paragraph 

Based in whole or in 

part on 38 CFR part 3 

section or paragraph 

5.200(b)(1)(ii) ............ New. 

5.200(b)(2) ................ 3.53(b), second sentence. 

5.200(b)(3) ................ 3.53(a), second sentence. 

5.200(b)(4) ................ 3.53(b), first sentence. 

5.200(b)(5) ................ 3.53(b), last sentence. 

5.201(a) ..................... Introduction to 3.52. 

5.201(b) ..................... 3.52(a). 

5.201(c), introduction 3.52(b). 

5.201(c)(1) and (2) .... New. 

5.201(c)(3) ................. 3.205(c). 

5.201(d) ..................... 3.52(c). 

5.201(e) ..................... 3.52(d). 

5.202(a) ..................... 3.214. 

5.202(b) ..................... New. 

5.203(a) ..................... New. 

5.203(b) ..................... 3.55(a)(1). 

5.203(c)(1) through 3 3.55(a)(2). 

5.203(c)(4) ................. 3.55(a)(5) and (a)(8), 

3.215. 

5.203(d)(1), introduction, (i) and (ii).3.55(a)(3). 

5.203(d)(1)(iii) ............ 3.55(a)(6). 

5.203(d)(2) ................ 3.55(a)(3). 

5.203(e) ..................... New. 

5.204 ......................... 3.500(n)(3). 

5.205(a) ..................... 3.400(v)(1). 

5.205(b) ..................... 3.400(v)(2). 

5.205(c) ..................... 3.400(v)(4). 

5.205(d) ..................... 3.400(v)(3). 

5.206 ......................... 3.400(w) . 

5.220, except for 

5.220(b)(2)(i).

3.57(a). 

5.220(b)(2)(i) ............. 3.57(a)(1)(ii) and first 

sentence of 

3.356(b). 

5.221 ......................... 3.210(a) and (b). 

5.222(a) ..................... New. 

5.222(b)(1), (3), and 

(4).

Introduction to 

3.57(c), introduction 

to 3.210(c). 

5.222(b)(2) ................ Introduction to 

3.210(c)(1) and 

3.210(c)(1)(i). 

5.223(a) ..................... 3.57(c)(1) through (3). 

5.223(b) ..................... 3.210(c)(2). 

5.224(a) ..................... 3.58. 

5.224(b) ..................... Introduction to 

3.210(c)(1) and 

3.210(c)(1)(ii). 

5.225(a) ..................... 3.57(e)(1). 

5.225(b)(1) ................ 3.57(e)(2). 

5.225(b)(2) ................ 3.57(e)(4). 

5.225(c) ..................... New. 

5.225(d) ..................... 3.57(e)(3). 

5.226(a) and (b) ........ 3.57(b) and 3.210(d). 

5.226(c) and (d) ........ New. 

5.227(a) ..................... 3.356(a). 

5.227(b)(1)(i) ............. 3.356(b)(1). 

5.227(b)(1)(ii) ............ 3.356(b)(2), last sentence. 

5.227(b)(1)(iii) ............ 3.356(b)(4). 

5.227(b)(1)(iv) ........... 3.356(b)(3), last sentence. 

5.227(b)(2)(i) ............. 3.356(b)(3). 

5.227(b)(2)(ii) ............ 3.356(b) introduction, 

third sentence. 

5.227(c)(1) ................. 3.356(b)(3) and new. 

Proposed part 5 section or paragraph 

Based in whole or in 

part on 38 CFR part 3 

section or paragraph 

5.227(c)(2)(i) ............. 3.356(b) introduction, 

second sentence. 

5.227(c)(2)(ii) and (iii) New. 

5.227(d), except for 

(d)(3).

New. 

5.227(d)(3) ................ 3.356(b)(2), first sentence. 

5.228(a) and (b) ........ New. 

5.228(c) ..................... 3.55(b). 

5.229(a), introduction 3.204(b). 

5.229(a)(1) ................ 3.209(a), first sentence. 

5.229(a)(2) ................ 3.209(b), first sentence, and 

3.209(g). 

5.229(a)(3) ................ 3.209(c). 

5.229(a)(4) ................ 3.209(d). 

5.229(a)(5) ................ 3.209(e). 

5.229(a)(6) ................ 3.209(f). 

5.229(a)(7) ................ 3.209(g). 

5.229(b)(1) ................ 3.209(a), last sentence. 

5.229(b)(2) ................ 3.209(b), last sentence. 

5.230 ......................... 3.403(a)(3). 

5.231 ......................... 3.503(a)(1). 

5.232 ......................... 3.503(a)(10). 

5.233 ......................... 3.503(a)(6). 

5.234(a) ..................... New. 

5.234(b) ..................... 3.403(a)(1). 

5.234(c)(1) ................. 3.503(a)(3)(i). 

5.234(c)(2) ................. 3.503(a)(3)(ii). 

5.235(a) ..................... New. 

5.235(b) ..................... 3.400(u). 

5.240(a) ..................... 3.59(a) and the first 

sentence of (b). 

5.240(b) ..................... New. 

5.240(c) ..................... 3.59(a), first sentence. 

5.240(d) ..................... New. 

5.240(e)(1) and (2)(i) 3.59(b), second and 

third sentences. 

5.240(e)(2)(ii) and (f) New. 

Readers who use this table to compare 

existing regulatory provisions with the 

proposed provisions, and who observe a 

substantive difference between them, 

should consult the text that appears 

later in this document for an 

explanation of significant changes in 

each regulation. Not every paragraph of 

every current part 3 section regarding 

the subject matter of this rulemaking is 

accounted for in the table. In some 

instances, other portions of the part 3 

sections that are addressed in these 

proposed regulations will appear in 

subparts of part 5 that are being 

published separately for public 

comment. For example, a reader might 

find a reference to paragraph (a) of a 

part 3 section in the table, but no 

reference to paragraph (b) of that section 

because paragraph (b) will be addressed 

in a separate NPRM. The table also does 

not include provisions from part 3 

regulations that will not be repeated in 

part 5. Such provisions are discussed 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55055 

specifically under the appropriate part 5 

heading in this preamble. Readers are 

invited to comment on the proposed 

part 5 provisions and also on our 

proposals to omit those part 3 

provisions from part 5. 

Content of Proposed Regulations 

A number of regulations in current 

part 3 refer to payment of various VA 

benefits to ‘‘or for’’ a veteran, a 

surviving spouse, or a child. The ‘‘or 

for’’ language is sometimes used as a 

shorthand way of indicating that a 

payment of benefits may be made to a 

fiduciary for a beneficiary. At other 

times, it refers to the fact that additional 

benefit payments may be made to a VA 

beneficiary based on the existence of a 

dependent (a dependent’s allowance). 

We believe that use of ‘‘or for’’ in 

these contexts may be confusing to 

many regulation users and propose not 

to repeat it in part 5. We propose not to 

include the ‘‘or for’’ qualifier in 

proposed regulations where the phrase 

refers to payments to a fiduciary on 

behalf of a beneficiary because it is 

unnecessary. Benefits are always 

potentially payable to a fiduciary on 

behalf of a beneficiary. We propose to 

replace the ‘‘or for’’ phrase with ‘‘based 

on the existence of’’ in situations where 

‘‘or for’’ refers to payment of a 

dependent’s allowance. We intend no 

substantive change by omission or 

replacement of the ‘‘or for’’ language. 

Some current part 3 regulations by 

their terms limit their application to 

dependents of veterans when, in fact, 

they may be applicable to dependents of 

VA claimants or beneficiaries who are 

not veterans. For a specific example, see 

the supplementary information 

concerning proposed § 5.190 that 

appears later in this NPRM. Throughout 

this NPRM if a current regulation is too 

narrowly drawn in this way we have 

written its proposed part 5 counterpart 

to be more generally applicable. 

General Dependency Provisions 

5.180 Evidence of dependency—award 

of, or an increase in, VA benefits 

Proposed § 5.180 provides rules for 

determining what evidence is required 

for a claimant to obtain VA benefits, or 

for a beneficiary to obtain additional VA 

benefits, based upon the existence of a 

dependent. 

Proposed § 5.180(a), which explains 

the purpose of § 5.180, includes the type 

of general information contained in the 

first sentence of current § 3.213(a), but 

clarifies that the proposed section 

applies to claimants seeking new 

benefits based on the existence of a 

dependent as well as to beneficiaries 

seeking an increase in benefits based on 

the existence of a dependent. Proposed 

§ 5.180(b) is based on § 3.204(a)(1), but 

clarifies that a statement submitted as 

proof of a relationship with another 

person must be in writing, as required 

by 38 U.S.C. 5124. 

Proposed § 5.180(c) is based on 

current § 3.204(a)(2), which describes 

circumstances where a statement alone 

is not sufficient proof of relationship. 

We propose to add, in § 5.180(c)(1), that 

additional evidence is also required if 

the claimant’s or beneficiary’s statement 

does not contain all of the necessary 

information set out in § 5.180(b). 

5.181 Evidence of dependency—

reduction or discontinuance of VA 

benefits 

Proposed § 5.181 addresses evidence 

requirements for establishing that 

changes in the status of a dependent 

that could reduce or discontinue 

benefits have occurred. Generally, under 

§ 5.181(b), VA would accept the 

beneficiary’s report under proposed 

§ 5.182 of a change in a dependent’s 

status. However, VA would require 

more formal proof if it has information 

contradicting the statement. This is 

consistent with provisions of current 

§ 3.213(a) that state that a ‘‘claimant or 

payee[‘s]’’ statement will be accepted 

‘‘in the absence of contradictory 

information’’ and of § 3.213(c) that state 

that VA will request formal proof of a 

change in dependency if it has reason to 

believe an event occurred earlier than 

reported. 

Proposed § 5.181(c), derived from 

current § 3.213(b), states that if the 

beneficiary’s statement and any 

additional proof is not sufficient to 

establish the necessary facts, VA will 

reduce or discontinue the dependency 

benefit effective the first day of the 

month that follows the month for which 

VA last paid benefits. This proposed 

paragraph includes a wording change 

consistent with our proposal to clarify 

effective dates for reductions and 

discontinuances. Rather than saying VA 

will reduce or discontinue benefits 

‘‘effective the date of the last payment,’’

we propose to state that VA will reduce 

or discontinue benefits effective ‘‘the 

first day of the month that follows the 

month for which VA last paid benefits.’’

Including this change in part 5 will 

provide beneficiaries with the actual 

date when VA will stop paying benefits 

or pay benefits at a reduced rate. 

Current § 3.213(b) also includes 

procedures for VA to request a 

statement of the date of a change in 

dependency if the date of that change 

was not reported, together with various 

related procedures. We propose not to 

repeat those provisions in subpart D of 

part 5. Proposed part 5 includes notice 

procedures that come into play when 

VA proposes an adverse action 

concerning benefits. These procedures 

would, among other things, require VA 

to give a beneficiary whose benefits are 

reduced or discontinued under 

proposed § 5.181(c) advance notice of 

the adverse action, and permit the 

beneficiary to request a hearing and to 

submit evidence concerning the matter. 

There are also provisions for restoring 

benefits following adverse action under 

some circumstances. See § 5.83, ‘‘Right 

to notice of decisions and proposed 

adverse actions’’ (70 CFR 24680, 24687), 

and § 5.84, ‘‘Restoration of benefits 

following adverse action’’ (70 CFR 

24680, 24688). We believe that these 

provisions provide as much, if not more, 

protection to beneficiaries as the 

safeguards in § 3.213(b) that would not 

be included in § 5.181. 

5.182 Beneficiary’s responsibility to 

report changes in status of dependents 

Proposed § 5.182 is new, although it 

is consistent with provisions found in 

current part 3 regulations (for example, 

see current §§ 3.256(a), 3.277(b), and 

3.660(a)). 

Proposed § 5.182(a) states that the 

section is applicable to beneficiaries 

who are receiving additional 

compensation, dependency and 

indemnity compensation, or pension 

based on the existence of a dependent. 

Proposed § 5.182(b) states the general 

rule that such a beneficiary must inform 

VA of the day, month, and year of a 

change in the status of a dependent that 

could reduce or discontinue the 

beneficiary’s VA benefits when the 

beneficiary acquires knowledge of the 

change. 

Proposed § 5.182(c) provides that only 

the month and year of the event need be 

reported if the change in the status of a 

dependent results from marriage, 

annulment of a marriage, divorce, death 

of a dependent, or discontinuance of 

school attendance by a person 

recognized by VA as a child on the basis 

of school attendance. VA does not need 

to know the specific day of those events, 

because under 38 U.S.C. 5112(b)(2) and 

(7) the effective date of reduction or 

discontinuance of benefits based on 

those events is the last day of the month 

in which the event occurred. 

For the text of § 5.104, crossreferenced at the end of proposed 

§ 5.182, see 70 FR 24680, 24691. 


sroberts on PROD1PC70 with PROPOSALS
55056 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

5.183 Effective date for additional 

benefits based on the existence of a 

dependent 

Proposed § 5.183 is derived from 

current § 3.401(b), which states the 

effective date to be assigned to the 

award of additional benefits based on 

the existence of a dependent. Proposed 

§ 5.183(b)(1) adds information, based on 

current § 3.403(a)(5), concerning how 

VA determines the date of adoptions for 

VA benefit purposes. 

5.184 Effective date of reduction or 

discontinuance of VA benefits due to 

the death of a beneficiary’s dependent 

Proposed § 5.184 is based on current 

§ 3.500(g)(2)(ii) and applicable portions 

of the last sentence of § 3.660(a)(2) with 

one change. Under current 

§ 3.500(g)(2)(ii), when a dependent dies, 

benefits (other than benefits under 

certain old pension programs) are 

reduced or discontinued ‘‘the last day of 

the month in which death occurred.’’

The same effective date is described in 

the last sentence of § 3.660(a)(2) as ‘‘the 

last day of the month in which 

dependency ceased.’’ The underlying 

statute, 38 U.S.C. 5112(b)(2), uses ‘‘the 

last day of the month in which such 

* * * death occurs.’’ VA interprets 

these rules as providing that benefits are 

paid through the last day of the month 

of death, but not for the first day of the 

month following the month of death and 

thereafter. We believe that this is more 

clearly expressed by stating that ‘‘VA 

will pay a reduced rate or discontinue 

benefits based on the death of a 

beneficiary’s dependent effective the 

first day of the month that follows the 

month in which death occurred.’’ This 

same change of language is proposed in 

§§ 5.197(b) and 5.198(b). 

We propose not to repeat in part 5 the 

language in current § 3.500(g)(2)(i) 

which refers to the effective date of 

reductions or discontinuances for the 

death of dependents who died before 

October 1, 1982, because such cases are 

unlikely to come before VA at this point 

in time. Should such a case arise, it 

could be processed under the 

controlling statute. 

Marriage, Divorce, and Annulment 

5.190 Status as a spouse 

Proposed § 5.190 defines the term 

‘‘spouse’’ for VA purposes. Current 

§ 3.50(a) defines ‘‘spouse’’ as ‘‘a person 

of the opposite sex whose marriage to 

the veteran meets the requirements of 

§ 3.1(j).’’ Proposed § 5.190 omits the 

phrase ‘‘to the veteran.’’ The term 

‘‘spouse’’ has broader application in 

terms of VA benefit determinations. For 

example, see § 3.262(b)(1) concerning 

calculation of the income of a parent 

and the parent’s spouse for purposes of 

income-tested VA benefits. We have 

also replaced the reference to § 3.1(j) 

with a reference to its part 5 equivalent. 

5.191 Marriages VA recognizes as 

valid 

Proposed § 5.191 is derived from 

current § 3.1(j) and addresses the 

marriages VA accepts as valid marriages 

for purposes of entitlement to VA 

benefits. We propose a change to make 

the proposed section state that a spouse 

must be a person of the opposite sex, 

consistent with long-standing VA 

practice and the requirements of 38 

U.S.C. 101(31). 

5.192 Evidence of marriage 

Proposed § 5.192, based on current 

§ 3.205(a) and (b), addresses evidence 

VA will accept as proof of marriage. We 

propose to add, in § 5.192(c)(6)(i), that 

VA will accept as proof of marriage a 

copy of the State’s acknowledgement of 

registration of the marriage in States 

where common-law marriages are 

recognized. 

5.193 Proof of marriage termination 

where evidence is in conflict or 

termination is protested 

Proposed § 5.193 is based on the last 

sentence of current 3.205(b). 

5.194 Acceptance of divorce decrees 

Proposed § 5.194, derived from 

current § 3.206, states the criteria VA 

uses for determining whether a divorce 

decree is valid for VA purposes. 

Section 3.206 says that VA will 

question the ‘‘validity of a divorce 

decree regular on its face’’ only if the 

validity is put into issue by a party to 

the divorce or by a person ‘‘whose 

interest in a claim’’ for VA benefits 

would be affected by the divorce 

decree’s validity. We propose in 

§ 5.194(a)(1) to add the term ‘‘(proper)’’

after ‘‘regular’’ and to describe the latter 

person as one ‘‘whose entitlement to VA 

benefits would be affected if VA 

recognizes the decree as valid.’’ These 

changes are intended only as 

clarifications of VA’s current 

interpretation of section 3.206 and not 

as substantive changes from the current 

rule. 

Both current § 3.206 and proposed 

§ 5.194 use the term ‘‘bona fide 

domicile.’’ According to Black’s Law 

Dictionary, a ‘‘domicile’’ is the ‘‘true, 

fixed, principal and permanent home, to 

which [the] person intends to return and 

remain even though currently residing 

elsewhere.’’ Black’s Law Dictionary, 186 

(8th ed. 2004). ‘‘Bona fide’’ is simply 

Latin for ‘‘in good faith.’’ The ‘‘bona fide 

domicile’’ is, for most individuals, their 

permanent home. Therefore, we have 

included this description of bona fide 

domicile in proposed § 5.194(b)(1) in 

order to clarify this technical term for 

the reader. 

Proposed § 5.194(b) states the 

standards VA uses to determine whether 

a person is validly divorced if that 

person has not remarried. New 

proposed § 5.194(b)(3) adds a 

requirement that VA be provided with 

the original divorce decree, a courtcertified copy, or a court-certified 

abstract of the original decree. This 

addition is necessary to insure that VA 

adjudicators have accurate information 

to assess a challenge to a divorce decree. 

5.195 Void marriages 

Current part 3 includes references to 

‘‘void’’ marriages (e.g., see § 3.207(a)), 

but it does not explain the meaning of 

a ‘‘void’’ marriage. Proposed § 5.195 

would provide that a marriage is void if 

at least one party to the marriage did not 

meet the legal requirements for entering 

into the marriage at the time the 

marriage took place. For example, such 

an illegality would exist if one of the 

parties was already married, or if one or 

both parties failed to meet the 

minimum-age requirement. We also 

propose to add a statement that VA 

determines whether a marriage was void 

in accordance with the law of the place 

that governs the marriage’s validity, 

together with a cross reference to the 

regulation that identifies those places, 

§ 5.191, ‘‘Marriages VA recognizes as 

valid.’’

5.196 Evidence of void or annulled 

marriages 

Proposed § 5.196 is derived from 

current § 3.207, the regulation that 

describes the evidence needed to prove 

that a marriage is void or has been 

annulled. 

5.197 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to 

marriage or remarriage 

Proposed § 5.197 is based on current 

§ 3.500(n). However, we propose in 

§ 5.197(a) a new provision describing 

the scope of applicability of the effective 

date rules in § 5.197. 

The last sentence of the introduction 

to § 3.500 states that ‘‘[w]here an award 

is reduced, the reduced rate will be 

effective the day following the date of 

discontinuance of the greater benefit.’’

However, the underlying statute, 38 

U.S.C. 5112(b), applies to 

discontinuance of benefits as well as to 

reductions in benefits, and proposed 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55057 

§ 5.197(b) is consistent with that 

approach. 

We propose not to include the 

language in current § 3.500(n)(2)(i) that 

refers to the effective date of reductions 

or discontinuances because of the 

marriage or remarriage of dependents 

that occurred before October 1, 1982. 

We believe that, with the passage of 

time, this provision is now unnecessary. 

It is very unlikely that VA would now 

retroactively reduce or discontinue an 

award based on a dependent’s marriage 

or remarriage that occurred more than 

20 years in the past. However, should 

such a case arise, it could be processed 

under the controlling statute. 

We have not included in proposed 

§ 5.197 the special effective date rule in 

§ 3.500(n)(ii) that applies to Old-Law 

and Section 306 Pension because that 

topic is addressed in another proposed 

part 5 regulation, § 5.477, Effective dates 

for Section 306 and Old-Law Pension 

reductions or discontinuances. Rather, 

we have simply cross referenced § 5.477 

at the end of § 5.197. For the text of 

proposed § 5.477, see 70 FR 77578 at 

77593. 

5.198 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to divorce 

or annulment 

Proposed § 5.198 is based on current 

§ 3.501(d). Current § 3.501(d) is, by its 

terms, only applicable to the reduction 

or discontinuance of a veteran’s benefits 

due to divorce or annulment. However, 

the underlying statute (38 U.S.C. 

5112(b)(2)) applies more broadly to 

reductions and discontinuances of 

benefits based on the divorce or 

annulment of the marriage of any 

beneficiary. We have broadened 

proposed § 5.198 to conform with the 

statute and to make it clear that the 

proposed regulation applies to any 

beneficiary. 

Other differences between the 

proposed and current regulation are 

similar to those occurring in proposed 

§ 5.197. That is, the last sentence of the 

introduction to § 3.501 is similar to the 

last sentence of the introduction to 

§ 3.500. The rule in proposed § 5.198 is 

also based on a paragraph of 38 U.S.C. 

5112(b), and we therefore also propose 

to make § 5.198 applicable to 

discontinuances as well as reductions. 

For the same reasons we propose in 

§ 5.197 not to include a rule applicable 

to marriage or remarriage of dependents 

that occurred before October 1, 1982, we 

propose not to repeat a rule in 

§ 3.501(d)(1) concerning divorces and 

annulments that occurred prior to 

October 1, 1982. Finally, consistent with 

the approach in proposed § 5.197, we 

propose to simply cross reference 

§ 5.477 at the end of § 5.198 rather than 

repeat a rule in § 3.501(d)(2) applicable 

to Section 306 and Old-Law Pension 

cases. 

Surviving Spouse Status 

5.200 Status as a surviving spouse 

Proposed § 5.200 is based on current 

§§ 3.50(b) and 3.53. New § 5.200(b)(1)(ii) 

states that ‘‘[i]n determining who was at 

fault in causing the separation, VA will 

consider the veteran’s and the other 

person’s conduct at the time the 

separation took place, but not conduct 

taking place after the separation.’’ This 

rule is consistent with long-standing VA 

policy and with current §§ 3.50(b)(1) 

and 3.53, which focus on fault for 

marital separation. Events which occur 

later are not relevant to that assessment. 

5.201 Surviving spouse status based 

on a deemed-valid marriage 

Proposed § 5.201 is based on current 

§§ 3.52 and 3.205(c), except for new 

§ 5.201(c)(1) and (2). 

Current § 3.52(b) requires, as a 

condition of VA deeming an invalid 

marriage valid, that the claimant have 

entered into the purported marriage 

without knowledge of a legal 

impediment that prevented formation of 

a valid marriage. VA does not consider 

knowledge of a legal impediment that a 

claimant acquires after the marriage to 

be relevant. We propose to add 

§ 5.201(c)(1) clarifying this point. 

Proposed new § 5.201(c)(2) provides 

examples of legal impediments to 

marriage, namely one of the parties 

being underage, one of the parties 

having a prior undissolved marriage at 

the time of the attempted marriage, and, 

in a jurisdiction that does not recognize 

common-law marriages, the parties’

failure to marry through a marriage 

ceremony. As to the latter, VA’s General 

Counsel has interpreted the term ‘‘legal 

impediment’’ to include the lack of a 

marriage ceremony in those 

jurisdictions that do not recognize 

common-law marriages. See 

VAOPGCPREC 58–91, 56 FR 50149, 

October 3, 1991. 

5.202 Effect of Federal court decisions 

on remarriage determinations 

Proposed § 5.202 is derived from 

current § 3.214. We propose to add a 

new provision in § 5.202(b) stating that 

the provisions of this section do not 

apply to VA determinations regarding 

whether a surviving spouse has held 

himself or herself out openly to the 

public as the spouse of another person 

as described in § 5.200(a)(2). This 

change will clarify that the concept of 

holding oneself out to the public as a 

spouse of another is a separate and 

distinct concept from remarriage. 

Finally, we propose not to repeat the 

provisions of current § 3.214 stating that 

the section is effective July 15, 1958. We 

believe that statement of the effective 

date has been rendered unnecessary due 

to the passage of time. We know of no 

affected claims pending from before that 

date. 

5.203 Effect of remarriage on a 

surviving spouse’s benefits 

Proposed § 5.203 contains provisions 

from current §§ 3.55 and 3.215, as well 

as certain new regulatory provisions 

described below. 

Proposed § 5.203(a) is new; however, 

it is not a substantive change. It restates 

a part of the statutory definition of 

‘‘surviving spouse’’ in 38 U.S.C. 101(3), 

which precludes surviving spouse status 

for someone who has remarried or (in 

cases not involving remarriage) has, 

‘‘since the death of the veteran, and after 

September 19, 1962, lived with another 

person and held himself or herself out 

openly to the public to be the spouse of 

such other person.’’

Proposed § 5.203(c) pertains to 

reinstatement of eligibility for surviving 

spouses who, because of remarriage, 

may have been ineligible for benefits 

under law in effect before 1971, whose 

remarriages ended before November 1, 

1990. Included in this provision is 

proposed § 5.203(c)(4), which is a 

consolidation of rules in current 

§§ 3.55(a)(5), 3.55(a)(8), and 3.215. 

Under current § 3.215, benefits may be 

paid to a surviving spouse who stops 

living with another person and holding 

himself or herself out openly to the 

public as that person’s spouse upon 

filing of an application and ‘‘satisfactory 

evidence.’’ In order to clarify what 

evidence is satisfactory, we propose to 

replace the phrase ‘‘satisfactory 

evidence’’ with ‘‘competent, credible 

evidence.’’ The definition of ‘‘competent 

evidence’’ will be proposed in a 

separate NPRM. ‘‘Credible’’ evidence is 

just evidence that is believable. 

(‘‘Credible testimony is that which is 

plausible or capable of being believed.’’

Caluza v. Brown, 7 Vet. App. 498, 511 

(1995)). We also propose to make a 

consistent change to a similar provision 

in proposed § 5.203(d)(1)(iii), which is 

based on current § 3.55(a)(6). 

Proposed § 5.203(d) is based on 

current § 3.55(a)(3) and (6), which 

authorizes reinstatement of eligibility 

for dependency and indemnity 

compensation for surviving spouses 

who, because of remarriage, may have 

been ineligible for benefits under laws 


sroberts on PROD1PC70 with PROPOSALS
55058 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

in effect before June 9, 1998. Section 

3.55(a)(3) and (6) refer to an effective 

date of October 1, 1998. Those 

references are derived from section 

8207(b) of Public Law 105–178, 112 

Stat. 495, which prohibits payment by 

reason of the amendments made by 

section 8207(a) for any month before 

October 1998. Proposed § 5.203(d)(2) 

carries over that limitation. However, 

§ 5.203(d)’s caption refers to law in 

effect before June 9, 1998, which is the 

date Public Law 105–178, was enacted. 

The difference in the effective dates is 

because the Public Law was effective on 

June 9, 1998, the date of enactment, 

with a provision prohibiting payments 

for any period before October 1, 1998. 

Proposed new § 5.203(e) would 

implement section 101 of the Veterans 

Benefits Act of 2003 (the Act) as it 

applies to eligibility for DIC. (Sec. 101, 

Pub. L. 108–183, 117 Stat. 2651, 2652 

(Dec. 16, 2003)). Under the Act, 

eligibility for DIC is extended to 

surviving spouses who remarry after 

December 15, 2003, and after they reach 

the age of 57. 

We propose not to include a provision 

contained in section 101(e) of the Act in 

§ 5.203 because the time to take 

advantage of that provision has now 

passed. Section 101(e) provides a 

special period during which a surviving 

spouse who had remarried after age 57, 

but before December 16, 2003 (the date 

of enactment of the Act), could apply for 

DIC. This category of surviving spouses 

must have filed an application for such 

benefits before December 16, 2004. We 

are not including this category of 

eligible beneficiaries in proposed 

§ 5.203 because the period for filing a 

claim under those circumstances has 

already closed. VA would award 

benefits to those who qualify under 

section 101(e) under the authority of the 

statute, so this omission will not result 

in any loss of benefits to eligible 

claimants. 

We have not included in proposed 

§ 5.203 two provisions in current § 3.55, 

§ 3.55(a)(4) and (a)(7). These provisions 

concern eligibility for certain medical 

care, educational assistance, and 

housing loans. As its title indicates, 

proposed part 5 deals with 

compensation, pension, burial and 

related benefits. Medical care, 

education, and housing loans are the 

subjects of other parts of title 38 of the 

Code of Federal Regulations. For the 

same reason, we have not included 

provisions of section 101 of the Veterans 

Benefits Act of 2003 concerning 

eligibility for educational assistance 

under 38 U.S.C. chapter 35 and housing 

loans under 38 U.S.C. chapter 37 for 

surviving spouses who remarry after 

reaching age 57. 

Finally, we note that the authority 

citation for current § 3.55(a)(3) and (a)(6) 

is 38 U.S.C. 1311(e). However, section 

502 of Public Law 106–117, 113 Stat. 

1545, 1574 (Nov. 30, 1999), deleted 38 

U.S.C. 1311(e) and moved those 

provisions to 38 U.S.C. 103(d). 

Therefore, we have updated this 

authority citation where applicable. 

5.204 Effective date of discontinuance 

of VA benefits to a surviving spouse 

who holds himself, or herself, out as the 

spouse of another person 

Proposed § 5.204 is derived from 

current § 3.500(n)(3). As with other 

proposed part 5 regulations concerning 

discontinuances, we propose to express 

the effective date in terms of the first 

day that benefits are stopped, rather 

than in terms of the last day for which 

benefits are paid. We intend no 

substantive change. We are also 

correcting the authority citation for 

§ 3.500(n)(3). 

5.205 Effective date of resumption of 

benefits to a surviving spouse due to 

termination of a remarriage 

Proposed § 5.205 addresses the 

effective dates for the award of benefits 

to surviving spouses who are eligible for 

the restoration of benefits due to the 

termination of a remarriage. The 

proposed regulation is derived from 

current § 3.400(v). We propose not to 

repeat a provision in current 

§ 3.400(v)(3) and (4). Those paragraphs 

specify that benefits are not payable 

unless the requirements for termination 

of a remarriage through death or divorce 

are met. We consider it unnecessary to 

specify that in proposed § 5.205 because 

a resumption of benefits would not be 

in order unless the termination of 

remarriage satisfied all applicable 

criteria. 

5.206 Effective date of resumption of 

benefits to a surviving spouse who stops 

holding himself, or herself, out as the 

spouse of another 

Proposed § 5.206 updates an effective 

date rule in current § 3.400(w) that was 

based on former 38 U.S.C. 5110(m). That 

statute stated that ‘‘[t]he effective date of 

an award of benefits to a surviving 

spouse based upon termination of 

actions described in section 103(d)(3) of 

this title shall not be earlier than the 

date of receipt of application therefor 

filed after termination of such actions 

and after December 31, 1970.’’ The 

‘‘actions described in section 103(d)(3) 

of this title’’ are ‘‘living with another 

person and holding himself or herself 

out openly to the public as that person’s 

spouse.’’

Congress repealed subsection (m) of 

38 U.S.C. 5110 in section 1201(i)(8) of 

Public Law 103–446, the ‘‘Veterans’

Benefits Improvements Act of 1994,’’

and does not appear to have enacted a 

specific substitute effective date 

provision. Consequently, the default 

effective date provision stated in 38 

U.S.C. 5110(a) would apply. Under 38 

U.S.C. 5110(a), ‘‘the effective date of an 

award based on an original claim, a 

claim reopened after final adjudication, 

or a claim for increase, of compensation, 

dependency and indemnity 

compensation, or pension, shall be fixed 

in accordance with the facts found, but 

shall not be earlier than the date of 

receipt of application therefor.’’ In line 

with 38 U.S.C. 103(d)(3) and 5110(a), we 

propose in § 5.206 to state that ‘‘[t]he 

effective date of an award resumed 

because a surviving spouse no longer 

holds himself or herself out as the 

spouse of another is the date the 

surviving spouse stopped living with 

that person and holding himself or 

herself out openly to the public as that 

person’s spouse, but not earlier than the 

date VA receives an application for 

benefits.’’

Child Status 

5.220 Status as a child for VA benefit 

purposes 

Proposed § 5.220 pertains to status as 

a child for VA benefit purposes. It is 

based on current § 3.57(a). 

Section 101(4)(A) of title 38, U.S.C., 

and 38 CFR 3.57 use the terms 

‘‘legitimate’’ and ‘‘illegitimate’’ to 

distinguish between two categories of 

children: Children whose mothers were 

married when the children were born 

and children whose mothers were not 

married when the children were born. 

The distinction between the two 

categories for VA benefit purposes lies 

in differences in evidence required to 

establish a parent-child relationship. We 

propose to retain that distinction in 

proposed part 5. However, because use 

of the terms ‘‘legitimate’’ and 

‘‘illegitimate’’ in describing children is 

becoming somewhat outmoded, we will 

no longer use those terms. We propose 

to use the term ‘‘natural child’’ to 

designate a child of either category and 

to maintain the distinction when 

necessary by describing the child’s 

parents’ marital status when the child 

was born. The proposed change in 

language is not intended to either 

diminish or enlarge the group of eligible 

claimants. 

Proposed § 5.220(b)(2)(ii) relates to 

status as a child based on school 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55059 

attendance. It is based on current 

§ 3.57(a)(1)(iii), which states that ‘‘[f]or 

the purposes of this section and § 3.667, 

the term ‘educational institution’ means 

a permanent organization that offers 

courses of instruction to a group of 

students who meet its enrollment 

criteria. The term includes schools, 

colleges, academies, seminaries, 

technical institutes, and universities, 

but does not include home-school 

programs.’’

In Theiss v. Principi, 18 Vet. App. 

204, 214 (2004), the Court of Appeals for 

Veterans Claims invalidated the 

provision in current § 3.57(a)(1)(iii) that 

excludes home-school programs from 

the definition of ‘‘educational 

institution;’’ holding that an amendment 

that adopted the exclusion did not meet 

procedural notice and comment 

requirements of 5 U.S.C. 553. 

Although the court invalidated the 

rule on procedural grounds and did not 

foreclose reinstating it through proper 

procedures, its opinion also supports 

the idea that an ‘‘educational 

institution’’ could equally as well be 

interpreted to include a home school. 

Particularly in view of the fact that 

home schooling is becoming more 

common and that many jurisdictions 

now have procedures in place for 

accrediting home schools, VA proposes 

to include home-school programs 

within the definition of an ‘‘educational 

institution’’ in § 5.220(b)(2)(ii). To help 

guard against possible abuses, we also 

propose to specify that any educational 

institution must operate in compliance 

with the compulsory attendance laws of 

the State in which it is located, whether 

treated as a private school or home 

school under State law, and that the 

term ‘‘home schools’’ is limited to 

courses of instruction for grades 

kindergarten through 12. (VA has 

previously proposed to make such 

amendments to 38 CFR 3.57. See 71 FR 

39616 (July 13, 2006). 

5.221 Evidence to establish a parentnatural child relationship 

Proposed § 5.221 is based on the 

concepts in current § 3.210(a) and (b). It 

omits references to legitimacy or 

illegitimacy for the reasons noted above, 

but retains distinctions between the 

types of evidence required to establish 

a parent-natural child relationship when 

the child’s parents were married to each 

other at the time of the child’s birth and 

when they were not. 

5.222 Adoption arrangements 

recognized by VA 

New proposed § 5.222(a) states the 

scope of § 5.222: ‘‘This section describes 

the types of adoption arrangements and 

evidence of those arrangements that VA 

will accept as proof of an adoption for 

purposes of establishing a person as a 

child under § 5.220, ‘‘Status as a child 

for VA benefit purposes.’’

Proposed paragraph (b) is based on 

portions of § 3.57(c) and § 3.210(c). We 

have added clarification of a term used 

in current § 3.57(c), ‘‘interlocutory 

decree.’’ Black’s Law Dictionary defines 

‘‘interlocutory’’ as ‘‘interim or 

temporary, not constituting a final 

resolution of the whole controversy.’’

Black’s Law Dictionary, 832 (8th ed. 

2004). Therefore, we have 

parenthetically added the word 

‘‘temporary’’ after the word 

‘‘interlocutory’’ in § 5.222(b)(3) in order 

to clarify the meaning of that term. 

Current § 3.57(c) also provides that VA 

will, subject to certain conditions, 

recognize an interlocutory decree that is 

‘‘unrescinded.’’ We propose, also in 

§ 5.222(b)(3), to provide instead that VA 

will recognize an interlocutory decree 

that has not been rescinded or rendered 

obsolete. Interlocutory awards may be 

rendered obsolete based on the passage 

of time or some other event. 

5.223 Child adopted after a veteran’s 

death recognized as the veteran’s child 

Proposed § 5.223, derived from 

current §§ 3.57(c)(1) through (3) and 

3.210(c)(2), concerns conditions under 

which VA will recognize as the child of 

a deceased veteran a child adopted by 

the veteran’s surviving spouse. 

One of the requirements, as currently 

stated in current § 3.57(c)(2), is that the 

child must have been adopted ‘‘under a 

decree issued within 2 years after 

August 25, 1959, or the veteran’s 

death[,] whichever is later.’’ The 1959 

date was the date of an applicable 

amendment to the authorizing statute, 

38 U.S.C. 101(4). Pub. L. 86–195, 73 

Stat. 424 (1959). However, that portion 

of 38 U.S.C. 101(4) was subsequently 

amended again. Sec. 4(2), Pub. L. 97–

295, 96 Stat. 1304 (1982). The 

requirement now is that the child must 

have been ‘‘legally adopted by the 

veteran’s surviving spouse before 

August 26, 1961, or within two years 

after the veteran’s death.’’ However, we 

propose to omit the date from proposed 

§ 5.223 rather than correcting it. A new 

claim for VA benefits based on a person 

qualifying as a child by virtue of having 

been adopted by a surviving spouse 

before August 26, 1961, rather than 

within two years after the veteran’s 

death, would now be extremely rare due 

to the passage of time. As a practical 

matter, it would require a claim that 

depended upon establishing status as a 

child through adoption by a surviving 

spouse after the veteran’s death, but 

before August 26, 1961, in the case of 

a child who became permanently 

incapable of self-support before 

reaching 18 years of age. Should such a 

now rare case arise, it could be 

adjudicated under the controlling 

statute. 

To be consistent with current 38 

U.S.C. 101(4), we also propose to refer 

to ‘‘regular contributions’’ in 

§ 5.223(a)(3), rather than to ‘‘recurring 

contributions’’ used in current 

§§ 3.57(c)(3) and 3.210(c)(2). While 

regular contribution will always be 

recurring contributions, recurring 

contributions might not be regular. 

5.224 Child status despite adoption 

out of a veteran’s family 

Proposed § 5.224, based on §§ 3.58 

and 3.210(c)(1), concerns continuing 

status as a veteran’s child despite the 

child’s adoption out of the veteran’s 

family. Although 38 U.S.C. 101(4) does 

not provide whether a child adopted out 

of a veteran’s family is still the veteran’s 

‘‘child’’ for VA benefits purposes, 

longstanding VA practice has been to 

continue to consider such a child as 

retaining status as the veteran’s ‘‘child’’

as defined currently in § 3.57. This 

practice prevents a child from losing 

eligibility for benefits as a veteran’s 

‘‘child’’ based merely on adoption out of 

the veteran’s family. 

5.225 Child status based on adoption 

into a veteran’s family under foreign law 

Proposed § 5.225, based on current 

§ 3.57(e), describes the requirements for 

status as a child based on adoption into 

a veteran’s family under foreign law. 

One of the requirements for 

recognizing a person adopted under 

foreign law as the legally adopted child 

of a living veteran when that person 

lives in a foreign country ‘‘with such 

veteran (or in the case of divorce 

following adoption, with the divorced 

spouse who is also an adoptive or 

natural parent) except for periods 

during which such person is residing 

apart from such veteran (or such 

divorced spouse) for purposes of fulltime attendance at an educational 

institution or during which such person 

or such veteran (or such divorced 

spouse) is confined in a hospital, 

nursing home, other health-care facility, 

or other institution * * *.’’ See 38 

U.S.C. 101(4)(B)(i)(IV). 

Current § 3.57(e)(2)(iv) omits the 

information in the final parenthetical 

relating to the confinement in a 

hospital, nursing home, or other 

medical institution or health-care 

facility, of a divorced spouse. Proposed 

§ 5.225(b)(1)(iv) corrects this omission. 


sroberts on PROD1PC70 with PROPOSALS
55060 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

Current § 3.57 provides rules for 

determining the validity of an adoption 

under foreign law in a case where the 

veteran is alive and the adopted person 

is living in a foreign country, but it does 

not indicate how that issue is resolved 

when the veteran is alive and the 

adopted person is not living in a foreign 

country. New proposed § 5.225(c) 

clarifies that in such cases VA will 

apply the rules in §§ 5.220 and 5.222 it 

normally applies to determine the 

validity of adoptions. 

Current § 3.57(e)(3) also addresses the 

circumstances under which VA will 

recognize, as a child of the veteran, a 

person adopted after the veteran’s death. 

Proposed § 5.225(d)(1) clarifies this 

provision by describing its applicability. 

5.226 Child status based on being a 

veteran’s stepchild 

Proposed § 5.226 provides details 

about how child status is established for 

VA benefit purposes on the basis of a 

parent-stepchild relationship between a 

veteran and another person. Proposed 

§ 5.226(a) and (b) consolidate concepts 

in current § 3.57(b), which defines a 

stepchild, and in current § 3.210(d), 

which describes the evidence necessary 

to establish child status by virtue of 

being a veteran’s stepchild. Current 

§ 3.57(b) defines a stepchild as ‘‘a 

legitimate or an illegitimate child of the 

veteran’s spouse.’’ We propose to clarify 

in § 5.226(a)(1) that a veteran’s stepchild 

can be either the natural or adopted 

child of the veteran’s spouse. The 

applicable statute, 38 U.S.C. 101(4), 

does not constrain the meaning of 

‘‘stepchild’’ to a natural child. 

Proposed § 5.226(b) restates, with 

clarifying changes, language in current 

§ 3.210(d), which describes what is 

needed to establish a veteran-stepchild 

relationship. 

There is very little information 

concerning stepchildren in current part 

3. In order to provide more guidance, 

we propose to include in proposed 

§ 5.226(c) and (d) provisions derived 

from long-standing VA practice to fill 

gaps left by the current regulations. 

As indicated in proposed 

§ 5.220(c)(2), one factor in establishing a 

veteran-stepchild relationship is that the 

person must be a member of the 

veteran’s household, or have been a 

member of the veteran’s household at 

the time of the veteran’s death. 

Proposed § 5.226(c) clarifies the term 

‘‘member of the veteran’s household’’ in 

this context. It explains that a stepchild 

is recognized as a member of the 

veteran’s household when that stepchild 

resides with the veteran or when the 

veteran provides at least half of the 

stepchild’s support. It provides 

examples of when the latter would 

apply, including a stepchild who lives 

apart from the veteran solely for 

medical, educational, or similar reasons 

and a stepchild whom the veteran 

supports who is living with another 

person who has legal custody of the 

stepchild. Proposed § 5.226(d) explains 

the effect of termination of a marriage 

between a veteran and the stepchild’s 

parent on the veteran-stepchild 

relationship. 

5.227 Child status based on permanent 

incapacity for self-support 

Proposed § 5.227 would serve 

essentially the same function in 

proposed part 5 as § 3.356 does in 

current part 3. As stated in proposed 

§ 5.220(b)(1), one of the requirements for 

status as a child for the purpose of VA 

benefits is that the person be under 18 

years of age. However, this requirement 

is subject to two exceptions. One of 

these exceptions, which permits child 

status to continue beyond 18 years of 

age if the person became permanently 

incapable of self-support before 

reaching 18 years of age, is the subject 

of proposed § 5.227, as indicated in 

proposed § 5.227(a). 

Proposed § 5.227(a) serves a function 

similar to the function of current 

§ 3.356(a). However, we note that 

current § 3.356(a) states that the 

incapacity must be permanent ‘‘at the 

date of attaining the age of 18 years’’

(emphasis added), whereas the 

underlying statute 38 U.S.C. 

101(4)(A)(ii), requires that the person 

became permanently incapable of selfsupport ‘‘before attaining the age of 

eighteen years’’ (emphasis added). 

Proposed § 5.220(b)(2)(i), crossreferenced in proposed § 5.227(a), more 

closely tracks the statute in this regard 

(as does current § 3.57(a)(1)(ii)). A 

person who becomes ‘‘permanently’’

incapable of self-support before the date 

that he or she turns 18 will of course 

continue to be incapable of self-support 

at the age of 18. 

Proposed § 5.227(b) begins a new 

organization and simplification of other 

concepts contained in current § 3.356. 

Current § 3.356(b) discusses both 

‘‘permanence’’ and ‘‘incapacity for selfsupport’’ in the same set of rules. The 

proposed reorganization separates the 

question of whether a person is 

incapable of self-support from the 

question of whether that incapacity is 

permanent. We propose this 

reorganization because the current rule 

may suggest that evidence of 

employment is of paramount 

importance in all respects, based on the 

fact that the current rule lists only four 

‘‘[p]rincipal factors for consideration’’

and all of those factors discuss 

employment. Employment evidence is 

certainly relevant to a determination of 

permanent incapacity for self-support. 

However, employment evidence tends 

to reveal capacity or incapacity for 

economic self-support that existed at the 

time of the employment in question. It 

may not be sufficient to show whether 

the incapacity is permanent. In practice, 

VA evaluates whether incapacity is 

permanent based primarily on the 

nature of the disability itself. Yet, the 

current regulation does not list that 

factor as a ‘‘[p]rincipal factor for 

consideration.’’ The current rule stresses 

economic factors with comparatively 

little discussion of non-economic 

factors. Both are important in 

determinations of helpless child status. 

The proposed reorganization would 

correct the potential for improperly 

minimizing the importance of evidence 

of social and medical disability. 

Proposed § 5.227(b) discusses the 

factors considered in determining 

whether a person is incapable of selfsupport. Proposed paragraph (b)(1) lists 

employment history as the first 

principal factor for consideration in a 

determination of incapacity for selfsupport. Proposed paragraphs (b)(1)(i) 

through (b)(1)(iv) list the types of 

employment history for consideration 

(productive employment, intermittent 

employment, charitable and therapeutic 

employment, and the lack of 

employment) and how they impact 

incapacity for self-support 

determinations. 

Proposed § 5.227(b)(2) lists criteria for 

evaluating the nature and extent of a 

person’s disability as the second factor 

in a determination of incapacity for selfsupport. Proposed criteria include 

whether the disability would render the 

average person incapable of selfsupport, the impact of the disability on 

self-care and performing tasks ordinarily 

expected of a person of the same age, 

and consideration of the person’s 

educational accomplishments. 

Proposed paragraph (c) describes how 

VA determines whether incapacity for 

self-support is ‘‘permanent.’’ The 

proposed factors in paragraph (c)(1) add 

detail to the requirement in § 3.356(b) 

and in proposed § 5.220(b)(2)(i) that 

determinations will be based on 

whether the child is permanently 

incapable of self-support through his 

own efforts by reason of physical or 

mental disability. Proposed factors 

include the following: the nature and 

extent of disability, whether the 

disability has worsened or improved 

over time, and whether there is a 

reasonable possibility that the disability 

will improve in the future. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55061 

Proposed § 5.227(c)(2)(i) restates 

concepts in the second sentence of the 

introduction to current § 3.356(b), 

which essentially provides that a 

determination of permanent incapacity 

for self-support is a case-by-case 

question of fact based on the evidence 

of record. Additional material in 

proposed paragraph (c)(2)(ii) governs 

the types of evidence most commonly 

used to support a claim that a child is 

permanently incapable of self-support. 

This would include various medical 

evidence and statements from persons 

who have observed the child’s 

condition, such as statements from 

teachers, social workers, or tutors 

having knowledge of the facts. We 

believe that this should be included so 

that claimants will be aware of the types 

of evidence that they may submit, as 

well as making adjudicators aware that 

such evidence is particularly relevant in 

determinations under this rule. 

Proposed § 5.227(d) addresses 

revision of previous VA determinations 

that child status is warranted for a 

person after reaching 18 years of age 

because of permanent incapacity for 

self-support. 

New proposed § 5.227(d)(1) clarifies 

that a VA determination that a child is 

permanently incapable of self-support is 

not subject to protection under current 

§ 3.951(b) or § 3.952. This is consistent 

with provisions of the introduction to 

current § 3.356(b) and proposed 

§ 5.227(b)(2)(ii) that specify that rating 

criteria applicable to disabled veterans 

are not controlling. 

New proposed § 5.227(d)(2) states that 

VA will order a reexamination in such 

cases only in unusual circumstances. 

Inasmuch as VA would necessarily have 

found that incapacity for self-support 

was permanent when making the initial 

determination, a need for reexamination 

later should rarely be necessary. This 

new provision protects a helpless child 

from needless reexamination while at 

the same time recognizing that rare 

cases do occur in which updated 

medical information may be warranted. 

Proposed new § 5.227(d)(4) states that 

when a child who was formerly found 

by VA to have been permanently 

incapable of self-support based on 

mental incompetency is later found 

competent by a court, VA will 

determine whether the child continues 

to be permanently incapable of selfsupport. This would help to ensure that 

VA does not consider as children people 

who are capable of self-support. This 

reflects current VA practice, but it is not 

currently stated in our regulations. 

We propose not to repeat the rules in 

current § 3.950 in part 5. Current 

§ 3.950, which is titled ‘‘Helpless 

children; Spanish American and prior 

wars,’’ states that ‘‘[m]arriage is not a 

bar to the payment of pension or 

compensation to a helpless child under 

an award approved prior to April 1, 

1944. The presumption, arising from the 

fact of marriage, that helplessness has 

ceased may be overcome by positive 

proof of continuing helplessness. As to 

awards approved on or after April 1, 

1944, pension or compensation may not 

be paid to a helpless child who has 

married.’’

Current § 3.950 was added to 38 CFR 

in 1961 as part of the codification of a 

large number of VA rules. In particular, 

§ 3.950 was a codification of VA Rule 

1950, which, in turn, was a restatement 

of VA Regulation (VAR) 2502(B)(1). The 

current rule has not been amended since 

that 1961 codification. 

We acknowledge that current § 3.950 

protects persons who had been found to 

be helpless children prior to April 1, 

1944, by establishing a rebuttable 

presumption, as opposed to a complete 

bar, against payment to a married 

‘‘helpless’’ child. However, we do not 

believe that this potential protection has 

application to any existing or potential 

claimants because of the passage of 

time. Therefore, removing § 3.950 would 

not harm any person potentially 

benefited by the provision. 

5.228 Exceptions applicable to 

termination of child status based on 

marriage of the child 

Proposed § 5.228 is based on current 

§ 3.55(b), but includes two new 

clarifying provisions. 

Proposed new § 5.228(a), an 

applicability paragraph, explains that 

the section states exceptions to the 

requirement in § 5.220(a) (and in 38 

U.S.C. 101(4)(A)) that, for a person to 

have status as a ‘‘child’’ for VA benefit 

purposes, that person must be 

unmarried. 

Proposed new § 5.228(b) clarifies that 

the requirement that a person be 

unmarried to be recognized as a ‘‘child’’

for VA benefit purposes does not extend 

to benefits under 38 U.S.C. chapter 18, 

which provides benefits based upon 

birth defects suffered by certain 

children of Vietnam Era veterans and 

children of certain veterans who served 

in Korea. See 38 U.S.C. 1821 and 1831. 

(The requirement is also inapplicable to 

certain insurance benefits and to a 

statutory provision relating to the 

disposition of unclaimed personal 

property. See 38 U.S.C. 101(4)(A). 

However, that is beyond the scope of 

proposed part 5.) 

Current § 3.55(b)(2) states that ‘‘[o]n or 

after January 1, 1975, marriage of a child 

terminated prior to November 1, 1990, 

shall not bar the furnishing of benefits 

to or for such child provided that the 

marriage: (i) [h]as been terminated by 

death, or (ii) [h]as been dissolved by a 

court with basic authority to render 

divorce decrees unless the Department 

of Veterans Affairs determines that the 

divorce was secured through fraud by 

either party or by collusion.’’

Proposed § 5.228(c)(3) and (4) retain 

the basic rules in current § 3.55(b)(2), 

but we have omitted the January 1, 

1975, effective date, which is now 

unnecessary due to the passage of time. 

(January 1, 1975, was the effective date 

of the Veterans and Survivors Pension 

Adjustment Act of 1974, Pub. L. 93–527, 

88 Stat. 1702.) 

5.229 Proof of age and birth 

Proposed § 5.229 is derived from 

current §§ 3.204(b) and 3.209(a) through 

(g). 

5.230 Effective date of award of 

pension or dependency and indemnity 

compensation to, or based on the 

existence of, a child born after the 

veteran’s death 

Proposed § 5.230 is based on current 

§ 3.403(a)(3). The current regulation 

refers, in part, to a ‘‘notice of the 

expected or actual birth meeting the 

requirements of an informal claim.’’ In 

this particular context, ‘‘an informal 

claim’’ means a ‘‘communication or 

action, indicating an intent to apply for 

one or more benefits under the laws 

administered by the Department of 

Veterans Affairs.’’ See current § 3.155(a). 

Therefore, in § 5.230, we propose to 

refer to the notice in question as being 

one that ‘‘is sufficient to indicate an 

intent to apply for pension or DIC 

benefits’’ for, or based on the existence 

of, a child born after the death of the 

parent-veteran. 

The introduction to current § 3.403(a) 

states that it applies to awards of 

pension, compensation, or dependency 

and indemnity compensation. In the 

context of § 3.403(a)(3), compensation 

would be death compensation. 

However, we have not included death 

compensation provisions in proposed 

§ 5.230. Death compensation is only 

payable based upon the death of a 

veteran who died before January 1, 

1957. See 38 U.S.C. 1121 and 1141. VA 

does not anticipate receiving any more 

claims for death compensation that 

would fall within the scope of proposed 

§ 5.230. 

5.231 Effective date of reduction or 

discontinuance—child reaches age 18 or 

23 

Proposed § 5.231 is based on current 

§ 3.503(a)(1). Current § 3.503(a)(1) 


sroberts on PROD1PC70 with PROPOSALS
55062 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

provides that the effective date for a 

reduction or discontinuance of benefits 

that occurs when a child reaches age 18 

or 23, as applicable, is ‘‘[d]ay before 

18th (or 23d birthday) [sic]’’. However, 

the introduction to § 3.503(a) states that 

‘‘[w]here an award is reduced, the 

reduced rate will be payable the day 

following the date of discontinuance of 

the greater benefit.’’ To simplify this 

rule, and in keeping with the approach 

used generally in proposed part 5 to 

state effective dates for reductions and 

discontinues in terms of the first day 

that payments are reduced or 

discontinued rather than the last day of 

payment at the old rate, we propose to 

state in § 5.231(b) that ‘‘VA will pay a 

reduced rate or discontinue benefits 

effective on the child’s 18th or 23rd 

birthday, as applicable.’’ We intend no 

substantive change. 

5.232 Effective date of reduction or 

discontinuance—terminated adoptions 

Proposed § 5.232 is based on current 

§ 3.503(a)(10). For the same reasons 

noted with respect to proposed § 5.230 

(i.e., because of the way current 3.503(a) 

is structured and the way effective dates 

are framed in proposed part 5), we 

propose to state that the effective date 

of reduction or discontinuance is the 

day after the day the child left the 

custody of the adopting parent, etc., 

rather than the date the child left the 

custody of the adopting parent. In other 

words, benefits would continue to be 

paid at the old rate for the day the child 

left, but would be discontinued or paid 

at the reduced rate the day after the 

child left. We intend no substantive 

change. 

5.233 Effective date of reduction or 

discontinuance ‘‘ stepchild no longer a 

member of the veteran’s household 

Proposed § 5.233 is based on current 

§ 3.503(a)(6). For the same reasons noted 

with respect to proposed §§ 5.231 and 

5.232 (i.e., because of the way current 

3.503(a) is structured and the way 

effective dates are framed in proposed 

part 5), we propose to state that the 

effective date of reduction or 

discontinuance is the day following the 

date the child ceased being a member of 

the veteran’s household, rather than the 

last day the child was a member of the 

veteran’s household. In other words, 

benefits would continue to be paid at 

the old rate for the day the child left the 

veteran’s household, but would be 

discontinued or paid at the reduced rate 

the day after the child left. We intend 

no substantive change. 

5.234 Effective date of an award, 

reduction, or discontinuance of benefits 

based on child status due to permanent 

incapacity for self-support 

Proposed § 5.234 is based on current 

§§ 3.403(a)(1) and 3.503(a)(3). New 

§ 5.234(a) states when the section is 

applicable. Proposed paragraph (c) 

includes wording changes consistent 

with our previously described proposal 

to state effective dates for reductions 

and discontinuances of benefits in terms 

of the day the reduction or 

discontinuance actually goes into effect, 

rather than in terms of the last day old 

rates are paid. The text of § 5.83, 

referenced in proposed § 5.234(c)(2), 

may be found at 70 FR 24680 at 24687–

88. 

5.235 Effective date of an award of 

benefits due to termination of a child’s 

marriage 

Proposed § 5.235 is based on current 

§ 3.400(u). A new applicability 

provision, § 5.235(a), clarifies that the 

section states the effective dates of 

awards to, or based upon the existence 

of, a child when status as a child for the 

purpose of VA benefits has been 

restored due to termination of the 

child’s marriage. 

Proposed § 5.235(b)(3) consolidates 

provisions of current § 3.400(u)(3) and 

(4) by stating that ‘‘[a]wards under 

§ 5.228(c)(3) or (4) (pertaining to 

marriages terminated by death or 

divorce prior to November 1, 1990) are 

effective on the date VA receives an 

application for benefits.’’ Current 

§ 3.400(u)(3) and (4) provide earlier 

alternate effective dates where claims 

are received within 1 year of the date of 

death or date the divorce decree became 

final. We have omitted those provisions 

inasmuch as the death or divorce in 

question must have occurred prior to 

November 1, 1990. Therefore, no new 

applications for benefits could meet the 

criteria for the earlier alternate effective 

date. 

Parent Status 

5.240 Status as a veteran’s parent 

Proposed § 5.240 contains the rules in 

current § 3.59, which defines whom VA 

considers to be a parent of a veteran. We 

also propose to add additional guidance 

as to how VA determines status as a 

parent, based on long-standing VA 

practice. Throughout this section the 

term ‘‘child’’ refers to the person who 

later became the veteran. 

Proposed § 5.240(a) is based on 

current § 3.59(a) and the first sentence 

of § 3.59(b). We propose two clarifying 

changes as to the latter, which reads: 

‘‘Foster relationship must have begun 

prior to the veteran’s 21st birthday.’’

First, we propose to omit the term 

‘‘foster relationship.’’ It was an 

unnecessary addition to the regulation 

that is now § 3.59(b) and it could be 

subject to misinterpretation. 

The relevant relationship in the 

underlying statute, 38 U.S.C. 101(5), is 

not a ‘‘foster relationship,’’ but a 

relationship between a veteran and an 

individual who ‘‘stood in the 

relationship of a parent to a veteran.’’

The traditional legal term is ‘‘in loco 

parentis’’ (Latin meaning ‘‘in the place 

of a parent’’). The first sentence of 

§ 3.59(b) has its origins in an October 

1948 amendment to one of several 

predecessor regulations eventually 

consolidated into § 3.59, VAR 2514(D). 

That amendment, in turn, resulted from 

a series of decisions by the 

Administrator of Veterans Affairs, A.D. 

No. 536, October 22, 1943; A.D. No. 675, 

November 27, 1945; and A.D. No. 793, 

September 14, 1948. Cumulatively, 

these decisions essentially held that an 

in loco parentis relationship with a 

veteran must have begun while the 

veteran was still a minor and that the 

common law definition of the age of 

majority (age 21) prevails over State 

statutes establishing ages of majority. 

The last of these decisions, A.D. No. 

793, happened to arise in a case in 

which the person who was claiming to 

be in an in loco parentis relationship to 

a deceased veteran had ‘‘satisfactorily 

established foster parentage,’’ but 

‘‘foster’’ parentage was only incidental 

to the facts of the particular case and not 

a ground for the holding. Therefore, 

‘‘foster relationship’’ was a debatable 

addition to what is now § 3.59(b) in the 

first instance. 

In addition, ‘‘foster relationship’’

could be misinterpreted in this context. 

VA has not traditionally applied it in 

the technical sense of a foster parent. A 

‘‘foster parent’’ is ‘‘[a]n adult who, 

though without blood ties or legal ties, 

cares for and rears a child.’’ Black’s Law 

Dictionary 1145 (8th ed. 2004). That 

definition excludes persons such as 

grandparents, aunts, uncles, or even 

adult siblings who may care for and rear 

a minor child. VA does not exclude 

such persons from being considered a 

veteran’s parents for VA benefit 

purposes in appropriate circumstances. 

The second change is in proposed 

§ 5.240(a)(3)(ii), which shows more 

clearly that while such a relationship 

must have begun before the veteran’s 

21st birthday, the relationship may have 

ended at any time (subject to the 

requirement in § 5.240(a)(3)(i) that the 

relationship must have existed for at 

least one year at sometime before the 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55063 

veteran’s entry into active military 

service). This is implicit in the current 

regulation, and we intend no 

substantive change. 

New proposed § 5.240(b) clarifies that 

VA will not recognize an institution as 

a ‘‘parent’’ for VA purposes, even 

though the institution may be providing 

care for a veteran. This reflects current 

VA practice and, we believe, 

appropriately provides for the allocation 

of VA benefits to or on behalf of persons 

and not institutions. Further, 

interpreting ‘‘parent’’ to mean an 

institution would be inconsistent with 

the requirements of 38 U.S.C. 101(5): 

‘‘The term ‘parent’ means * * * a 

father, a mother, a father through 

adoption, a mother through adoption, or 

an individual who for a period of not 

less than one year stood in the 

relationship of a parent to a veteran 

* * *.’’

Proposed § 5.240(c) clarifies a rule in 

the first sentence of current § 3.59(a) 

that states that the term ‘‘parent’’

includes a natural mother or father of an 

illegitimate child ‘‘if the usual family 

relationship existed.’’ Proposed 

§ 5.240(c) provides VA will recognize a 

natural parent who was not married to 

the veteran’s other natural parent when 

the veteran was born if that parent 

accepted the child as a member of his 

or her household and/or provided 

‘‘substantial financial support to the 

veteran consistently from the date of the 

veteran’s birth until the veteran reached 

the age of 21, married, or entered active 

military service.’’ Through a reference to 

§ 5.221, proposed § 5.240(c) makes it 

clear that meeting one or both of these 

criteria does not replace the basic 

requirement that there be evidence to 

establish the parent-veteran 

relationship. 

Proposed § 5.240(d) provides that a 

natural or adoptive parent who had 

abandoned a child is not eligible for VA 

benefits based on being the parent of 

that child and defines the term 

‘‘abandoned’’ for purposes of this 

provision. This discourages the 

allocation of VA benefits to a parent 

who did not fulfill that role. However, 

consistent with VA practice, the rule 

permits recognition as a parent if that 

parent subsequently assumes parental 

obligations with respect to the 

abandoned child. 

Proposed § 5.240(e)(1) and (2)(i) are 

based on rules in the second and third 

sentences of current 3.59(b). Under the 

third sentence of § 3.59(b), if two 

persons stood in the relationship of 

father or mother for one year or more, 

VA recognizes as the parent the person 

who last stood is such relationship 

before the veteran last entered active 

military service. Proposed § 5.240(e)(2) 

generalizes the rule of recognizing as the 

parent the last person who qualified as 

a parent through any of the means listed 

in § 5.240(a). New proposed 

§ 5.240(e)(2)(ii) states that ‘‘VA will 

recognize a veteran’s natural parent who 

was the last person to have a parental 

relationship to the veteran before the 

veteran last entered active military 

service as the mother or father of the 

veteran even though that parent’s rights 

have been terminated by a court.’’ This 

rule, which represents current VA 

practice, makes a natural parent the 

‘‘default’’ parent in cases where parental 

rights have been terminated but there is 

no other person who assumed the 

parental relationship with the veteran 

prior to service. 

Proposed new § 5.240(f) defines the 

phrase ‘‘relinquished parental control’’

and expresses a preference for a natural 

or adoptive parent by requiring a person 

asserting to be a veteran’s parent under 

§ 5.240(a)(3) to prove that a natural or 

adoptive parent had relinquished 

parental control. As proposed § 5.240(f) 

states, relinquishment of parental 

control means that a parent ceased to 

provide for the veteran and that the 

parent-veteran relationship has been 

broken. 

Note Concerning § 3.503(a)(2) 

We propose not to include in part 5 

the last sentence of current § 3.503(a)(2), 

which contains the following rule 

relating to the effective date of a 

reduction or discontinuance to or for a 

child when that child enters services. 

The rules state: ‘‘Date of last payment of 

apportioned disability benefits for child 

not in custody of estranged spouse. Full 

rate payable to veteran. No change 

where payments are being made for the 

child to the veteran, his (her) estranged 

spouse, his (her) surviving spouse, or to 

the fiduciary of a child not in the 

surviving spouse’s custody.’’

The first two sentences of this rule 

will be addressed in another NPRM 

pertaining to apportionments. We do 

not need to state that VA will not reduce 

or discontinue payments being made on 

behalf of a child since there is no 

general rule that VA will reduce such 

payments when the child enters service. 

Note Concerning § 3.400(w) 

We are not including paragraph (w) of 

current § 3.400 because the statutory 

authority for that provision no longer 

exists. The substantive rule restated by 

paragraph (w) originally derived from 

38 U.S.C. 5110(m). The provision was 

repealed in section 1201(i)(8) of Pub. L. 

103–446. 

Endnote Regarding Amendatory 

Language 

We intend to ultimately remove part 

3 entirely, but we are not including 

amendatory language to accomplish that 

at this time. VA will provide public 

notice before removing part 3. 

Paperwork Reduction Act 

Although this document contains 

provisions constituting a collection of 

information at §§ 5.180, 5.181, 5.182, 

5.192, 5.193, 5.194, 5.196, 5.221, and 

5.229 under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521), no new or proposed revised 

collections of information are associated 

with this proposed rule. The 

information collection requirements for 

§§ 5.180, 5.181, 5.182, 5.192, 5.193, 

5.194, 5.196, 5.221, and 5.229 are 

currently approved by the Office of 

Management and Budget (OMB) and 

have been assigned OMB control 

numbers 2900–0043, 2900–0089, 2900–

0115, and 2900–0624. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed regulatory amendment 

will not have a significant economic 

impact on a substantial number of small 

entities as they are defined in the 

Regulatory Flexibility Act, 5 U.S.C. 601–

612. This proposed amendment would 

not affect any small entities. Therefore, 

pursuant to 5 U.S.C. 605(b), this 

proposed amendment is exempt from 

the initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Order classifies a rule as a significant 

regulatory action requiring review by 

the Office of Management and Budget if 

it meets any one of a number of 

specified conditions, including: having 

an annual effect on the economy of $100 

million or more, creating a serious 

inconsistency or interfering with an 

action of another agency, materially 

altering the budgetary impact of 

entitlements or the rights of entitlement 

recipients, or raising novel legal or 

policy issues. VA has examined the 

economic, legal, and policy implications 

of this proposed rule and has concluded 

that it is a significant regulatory action 


sroberts on PROD1PC70 with PROPOSALS
55064 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

because it may raise novel legal or 

policy issues. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in an 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

(adjusted annually for inflation) in any 

given year. This proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Catalog of Federal Domestic Assistance 

Numbers 

The Catalog of Federal Domestic 

Assistance program numbers and titles for 

this proposal are 64.102, Compensation for 

Service-Connected Deaths for Veterans’

Dependents; 64.104, Pension for NonService-Connected Disability for Veterans; 

64.105, Pension to Veterans Surviving 

Spouses, and Children; 64.109, Veterans 

Compensation for Service-Connected 

Disability; 64.110, Veterans Dependency and 

Indemnity Compensation for ServiceConnected Death; and 64.127, Monthly 

Allowance for Children of Vietnam Veterans 

Born with Spina Bifida. 

List of Subjects in 38 CFR Part 5 

Administrative practice and 

procedure, Claims, Disability benefits, 

Veterans. 

Approved: June 12, 2006. 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

For the reasons set out in the 

preamble, VA proposes to further 

amend 38 CFR part 5 as proposed to be 

added at 69 FR 4832, January 30, 2004, 

by adding subpart D to read as follows: 

PART 5—COMPENSATION, PENSION, 

BURIAL, AND RELATED BENEFITS 

Subpart D—Dependents and Survivors 

General Dependency Provisions 

Sec. 

5.180 Evidence of dependency—award of, 

or an increase in, VA benefits. 

5.181 Evidence of dependency—reduction 

or discontinuance of VA benefits. 

5.182 Beneficiary’s responsibility to report 

changes in status of dependents. 

5.183 Effective date for additional benefits 

based on the existence of a dependent. 

5.184 Effective date of reduction or 

discontinuance of VA benefits due to the 

death of a beneficiary’s dependent. 

5.185–5.189 [Reserved] 

Marriage, Divorce, And Annulment 

5.190 Status as a spouse. 

5.191 Marriages VA recognizes as valid. 

5.192 Evidence of marriage. 

5.193 Proof of marriage termination where 

evidence is in conflict or termination is 

protested. 

5.194 Acceptance of divorce decrees. 

5.195 Void marriages. 

5.196 Evidence of void or annulled 

marriages. 

5.197 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to marriage 

or remarriage. 

5.198 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to divorce 

or annulment. 

5.199 [Reserved] 

Surviving Spouse Status 

5.200 Status as a surviving spouse. 

5.201 Surviving spouse status based on a 

deemed-valid marriage. 

5.202 Effect of Federal court decisions on 

remarriage determinations. 

5.203 Effect of remarriage on a surviving 

spouse’s benefits. 

5.204 Effective date of discontinuance of 

VA benefits to a surviving spouse who 

holds himself, or herself, out as the 

spouse of another person. 

5.205 Effective date of resumption of 

benefits to a surviving spouse due to 

termination of a remarriage. 

5.206 Effective date of resumption of 

benefits to a surviving spouse who stops 

holding himself, or herself, out as the 

spouse of another. 

5.207–5.219 [Reserved] 

Child Status 

5.220 Status as a child for VA benefit 

purposes. 

5.221 Evidence to establish a parent-natural 

child relationship. 

5.222 Adoption arrangements recognized by 

VA. 

5.223 Child adopted after a veteran’s death 

recognized as the veteran’s child. 

5.224 Child status despite adoption out of 

a veteran’s family. 

5.225 Child status based on adoption into a 

veteran’s family under foreign law. 

5.226 Child status based on being a 

veteran’s stepchild. 

5.227 Child status based on permanent 

incapacity for self-support. 

5.228 Exceptions applicable to termination 

of child status based on marriage of the 

child. 

5.229 Proof of age and birth. 

5.230 Effective date of award of pension or 

dependency and indemnity 

compensation to, or based on the 

existence of, a child born after the 

veteran’s death. 

5.231 Effective date of reduction or 

discontinuance—child reaches age 18 or 

23. 

5.232 Effective date of reduction or 

discontinuance—terminated adoptions. 

5.233 Effective date of reduction or 

discontinuance—stepchild no longer a 

member of the veteran’s household. 

5.234 Effective date of an award, reduction, 

or discontinuance of benefits based on 

child status due to permanent incapacity 

for self-support. 

5.235 Effective date of an award of benefits 

due to termination of a child’s marriage. 

5.236–5.239 [Reserved] 

Parent Status 

5.240 Status as a veteran’s parent. 

5.241–5.249 [Reserved] 

Authority: 38 U.S.C. 501(a) and as noted in 

specific sections. 

Subpart D—Dependents and Survivors 

General Dependency Provisions 

§ 5.180 Evidence of dependency—award 

of, or an increase in, VA benefits. 

(a) Purpose. Eligibility for a claimant 

to receive VA benefits, or for a 

beneficiary to receive an increase in VA 

benefits, based on the existence of a 

dependent requires that the claimant or 

beneficiary show his or her relationship 

to the dependent. This section describes 

the types of evidence VA will accept as 

proof of the claimant’s or beneficiary’s 

relationship to another person in such 

cases. 

(b) When a written statement alone is 

sufficient. Except as noted in paragraph 

(c) of this section, in determining 

whether a claimant is entitled to 

benefits, or a beneficiary is entitled to 

additional benefits, based on acquiring 

one or more dependents, VA will accept 

a claimant’s or a beneficiary’s written 

statement as sufficient proof of 

marriage, termination of marriage, birth 

of a child, or death of a dependent. The 

statement must contain all of the 

applicable information described in 

paragraphs (b)(1) through (b)(4) of this 

section. 

(1) The date (month and year) and 

place of the marriage, marriage 

termination, birth, or death. 

(2) The full name and relationship of 

the other person to the claimant or 

beneficiary. 

(3) The Social Security number of the 

person who the claimant or beneficiary 

asserts is a dependent and on whose 

behalf the claimant or beneficiary is 

claiming benefits. See § 5.102, 

‘‘Requirement to report Social Security 

numbers.’’

(4) The name and address of the 

person who has custody of any child 

who the claimant or beneficiary asserts 

is a dependent, if the dependent does 

not reside with the claimant or 

beneficiary. 

(c) When a written statement alone is 

not sufficient. Additional supporting 

evidence will be required in the 

following cases: 

(1) When the statement does not 

contain all of the applicable information 

required by paragraphs (b)(1) through 

(b)(4) of this section. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55065 

(2) When the claimant or beneficiary 

does not reside in a State, as that term 

is defined in § 3.1(i) of this chapter. 

(3) When something in the statement 

raises a question as to its validity. 

(4) When the statement conflicts with 

other evidence in the record. 

(5) When there is a reasonable 

indication, either in the statement or in 

the other evidence in the record, of 

fraud or misrepresentation of the 

relationship in question. 

(d) Evidence listed by order of 

preference. The types of additional 

supporting evidence required by 

paragraph (c) of this section are set forth 

in §§ 5.192 through 5.194, 5.221, 5.229 

and 3.211 of this chapter. Where 

evidence is set forth in a particular 

section in the order of preference, VA 

may accept evidence from a lower class 

of preference if it is sufficient to prove 

the fact at issue. 

(e) Acceptability of photocopies. VA 

will accept photocopies of documents 

supporting the relationship if it is 

satisfied that the photocopies are 

authentic and free from alteration. 

Otherwise, VA may require certified 

copies of documents from the custodian 

of the documents, bearing the 

custodian’s signature and official seal. 

(Authority: 38 U.S.C. 501(a), 5124) 

§ 5.181 Evidence of dependency—

reduction or discontinuance of VA benefits. 

(a) Scope. This section describes the 

types of evidence VA will accept as 

proof of a change in the status of a 

dependent that would result in 

reduction or discontinuation of pension, 

compensation, or dependency and 

indemnity compensation. It also states 

the actions VA takes if the required 

evidence is not received. 

(b) Evidence of changes. VA will 

accept a beneficiary’s statement of a 

change in the status of a dependent 

described in § 5.182 as proof of the 

change if VA has no information 

contradicting the statement. (See § 3.217 

of this chapter, ‘‘Submission of 

statements or information affecting 

entitlement to benefits,’’ for information 

concerning acceptable statements.) 

Otherwise, VA will require formal proof 

regarding the matter. 

(c) Information not reported. If neither 

the statement described in, nor any 

additional proof required under, 

paragraph (b) of this section is sufficient 

to establish the necessary facts, VA will 

reduce or discontinue benefits, as 

appropriate, effective the first day of the 

month that follows the month for which 

VA last paid benefits. 

(Authority: 38 U.S.C. 501(a), 5112) 

Cross Reference: § 5.83, ‘‘Right to notice of 

decisions and adverse actions;’’ § 5.84, 

‘‘Restoration of benefits following adverse 

action;’’ and § 5.104, ‘‘Certifying continuing 

eligibility to receive benefits.’’

§ 5.182 Beneficiary’s responsibility to 

report changes in status of dependents. 

(a) Applicability. This section applies 

to VA beneficiaries who are receiving 

additional compensation, dependency 

and indemnity compensation, or 

pension based on the existence of a 

dependent. 

(b) General rule. Except as provided 

in paragraph (c) of this section, a 

beneficiary must inform VA of the day, 

month, and year of a change in the 

status of a dependent that could reduce 

or discontinue his or her benefits. The 

change must be reported when the 

beneficiary acquires knowledge of the 

change. 

(c) Marriage, annulment, divorce, 

death, or discontinuance of school 

attendance. With respect to the date, the 

beneficiary need only report the month 

and year of any of the following: 

(1) The marriage, annulment of 

marriage, divorce, or death of a 

dependent, or 

(2) Discontinuation of school 

attendance by a person recognized by 

VA as a child on the basis of attendance 

at an approved educational institution. 

See § 5.220(b)(2)(ii) (concerning status 

as a child based on attendance at an 

approved educational institution). 

(Authority: 38 U.S.C. 501(a), 5112) 

Cross Reference: § 5.104, ‘‘Certifying 

continuing eligibility to receive benefits.’’

§ 5.183 Effective date for additional 

benefits based on the existence of a 

dependent. 

(a) General rule. Unless specifically 

provided otherwise in this part, the 

effective date for the award or increased 

award of additional benefits based on 

the existence of a dependent will be the 

date VA received written notice of the 

existence of the dependent, if evidence 

of dependency is received within one 

year of VA’s request for such evidence. 

If VA does not receive evidence of the 

dependency within one year of VA’s 

request for such evidence, the effective 

date for the award or increased award of 

additional benefits based on the 

existence of a dependent will be the 

date VA received the claim. 

(b) Specific applications and 

exceptions. The effective date for the 

award or increased award of additional 

benefits based on the existence of a 

dependent in the following 

circumstances will be: 

(1) The date of marriage or of the birth 

or adoption of a child, if VA receives 

written evidence of the event within one 

year of the event. With respect to 

adoption, the date of the event is the 

earliest of the following, as applicable: 

(i) The date of the adoption placement 

agreement; 

(ii) The date of the interlocutory 

(temporary) adoption decree; or 

(iii) The date of the final adoption 

decree. 

(2) The effective date of the qualifying 

disability rating, if VA receives written 

evidence of dependency within one year 

of the date VA sent notice of the rating 

action. 

(3) The same day as the effective date 

of an award of benefits other than 

benefits based on the existence of a 

dependent (the primary benefits), if: 

(i) Benefits based on the existence of 

a dependent are claimed on the same 

benefit application as the claim for the 

primary benefits, or 

(ii) VA receives an application for 

benefits based on the existence of a 

dependent within one year of the 

effective date of the award of the 

primary benefits. 

(c) Limitation. (1) In no case will VA 

award additional benefits based on the 

existence of a dependent effective before 

dependency for VA purposes arose. 

(2) In no case will VA award 

additional benefits for dependency 

effective before the date of an original 

claim. 

(Authority: 38 U.S.C. 5103(b), 5110(a), (f), 

(n)) 

Cross Reference: § 5.235, ‘‘Effective date of 

an award of benefits due to termination of a 

child’s marriage.’’

§ 5.184 Effective date of reduction or 

discontinuance of VA benefits due to the 

death of a beneficiary’s dependent. 

Except as provided in § 5.477(a) 

(applicable to section 306 and old-law 

pension), VA will pay a reduced rate or 

discontinue benefits based on the death 

of a beneficiary’s dependent effective 

the first day of the month that follows 

the month in which death occurred. 

(Authority: 38 U.S.C. 5112(b)(2)) 

§§ 5.185–5.189 [Reserved] 

Marriage, Divorce, and Annulment 

§ 5.190 Status as a spouse. 

For VA purposes, a ‘‘spouse’’ is a 

person of the opposite sex whose 

marriage meets the requirements for a 

valid marriage under § 5.191, 

‘‘Marriages VA recognizes as valid.’’

(Authority: 1 U.S.C. 7; 38 U.S.C. 101(31)) 

§ 5.191 Marriages VA recognizes as valid. 

Except as provided in § 5.201, 

‘‘Surviving spouse status based on a 

deemed-valid marriage,’’ a valid 

marriage for VA purposes is one 

between persons of the opposite sex that 


sroberts on PROD1PC70 with PROPOSALS
55066 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

exists in either of the following 

circumstances: 

(a) The marriage is valid under the 

law of the place where the parties lived 

at the time of the union; or 

(b) The marriage is valid under the 

law of the place where the parties lived 

at the time the right to benefits arose. 

(Authority: 38 U.S.C. 101(31), 103(c)) 

§ 5.192 Evidence of marriage. 

(a) Applicability. This section 

describes the evidence of marriage VA 

will accept when more is required than 

the statement of a claimant or 

beneficiary described in § 5.180, 

‘‘Evidence of dependency—award of, or 

an increase in, VA benefits,’’ or § 5.181, 

‘‘Evidence of dependency—reduction or 

discontinuance of VA benefits.’’

(b) Evidence of a valid marriage. In 

the absence of contrary evidence, VA 

will accept a marriage as valid when the 

claimant or beneficiary provides VA 

with any of the evidence described in 

paragraph (c) of this section and the 

facts established by such evidence are 

sufficient to establish a valid marriage 

under § 5.191, ‘‘Marriages VA 

recognizes as valid.’’ If one or both 

parties to the marriage were previously 

married, VA must also receive the 

claimant’s or beneficiary’s certified 

statement giving the date, place, and 

circumstances under which such prior 

marriages ended. 

(c) Acceptable evidence of marriage. 

VA will accept any of the following as 

proof of marriage. 

(1) A copy or abstract of the public 

record of marriage, or a copy of the 

church record of marriage. The copy or 

abstract must include the names of the 

persons married, the date and place of 

the marriage, and the number of any 

prior marriages if shown on the official 

record. 

(2) An official report from the service 

department if the veteran is a party to 

the marriage and the marriage took 

place during the veteran’s military 

service. 

(3) An affidavit from the official or 

clergyman who performed the 

ceremony. 

(4) The original marriage certificate if 

VA is satisfied that it is genuine and free 

from alteration. 

(5) The affidavits or certified 

statements of two or more eyewitnesses 

to the ceremony. 

(6) For informal or common-law 

marriages in jurisdictions where 

marriages other than by ceremony are 

recognized: 

(i) A copy of the State’s 

acknowledgement of registration, if the 

State has a procedure for registering 

informal or common-law marriages, or 

(ii) The affidavit or certified statement 

of one of the parties to the marriage, 

giving all the facts and circumstances 

concerning the alleged marriage. This 

includes details of the agreement made 

by the parties at the time they began 

living together, the length of time in 

months and years they have lived 

together, the location of each residence 

and the dates the parties lived there, 

and whether children were born as the 

result of the relationship. Such 

affidavits or certified statements must be 

accompanied by affidavits or certified 

statements from two or more persons 

who know from personal observation 

the relationship that existed between 

the parties. The affidavits or statements 

of these persons must include when the 

parties lived together, the places of the 

parties’ residence, whether they referred 

to themselves as married in the 

communities they lived in, and whether 

those communities generally accepted 

them as being married. 

(7) Any other evidence that would 

reasonably allow a VA decision maker 

to conclude that a valid marriage did 

occur. 

(Authority: 38 U.S.C. 103(c), 501(a)) 

Cross Reference: § 5.201, ‘‘Surviving 

spouse status based on a deemed-valid 

marriage.’’

§ 5.193 Proof of marriage termination 

where evidence is in conflict or termination 

is protested. 

When there is conflicting evidence on 

file, or there is a protest from an 

interested party, VA will accept any of 

the following as proof of the termination 

of a prior marriage: 

(a) Proof of the former spouse’s death. 

(b) Proof of divorce as specified in 

§ 5.194(b) or (c), as applicable. 

(c) A court-certified copy of the final 

decree of annulment or a court-certified 

abstract of such a decree. 

(Authority: 38 U.S.C. 501(a)) 

§ 5.194 Acceptance of divorce decrees. 

(a) General rule.—(1) VA will accept 

as valid a divorce decree that is regular 

(proper) on its face unless its validity is 

challenged by either of the following: 

(i) One of the parties named in the 

divorce decree, or 

(ii) Any person whose entitlement to 

VA benefits would be affected if VA 

recognizes the decree as valid. 

(2) In case of such a challenge, VA 

will make an independent decision 

about the validity of the divorce decree 

based on the criteria in paragraph (b) or 

(c) of this section, as applicable. 

(b) Challenged divorce decree—party 

to the divorce has not remarried. If the 

issue is whether a person is validly 

divorced and that person has not 

remarried, VA will accept the divorce 

decree as valid if all the following 

conditions are met: 

(1) The person who obtained the 

divorce had a bona-fide domicile 

(permanent home) in the place where 

the divorce decree was issued; 

(2) The person satisfied all the legal 

requirements for obtaining a divorce in 

the place in which the divorce decree 

was issued; and 

(3) VA has been provided with the 

original divorce decree, a court-certified 

copy of the original decree, or a courtcertified abstract of the original decree. 

(c) Challenged divorce decree—party 

to the divorce has remarried.—(1) 

General rule. Except as provided in 

paragraph (c)(2) of this section, if the 

issue is whether a person who has 

remarried was validly divorced from a 

prior spouse, then VA will accept the 

validity of the prior divorce decree if 

either: 

(i) The law of the place where the 

parties were living when they were 

married recognizes the validity of the 

divorce decree; or 

(ii) The law of the place where the 

parties were living when the right to VA 

benefits arose recognizes the validity of 

the divorce decree. 

(2) Foreign decree granted to residents 

of a State. VA will accept as valid a 

divorce decree obtained outside of a 

State by residents of that State if both of 

the following conditions are met: 

(i) The State in which the parties to 

the divorce lived at the time they 

obtained the decree recognizes the 

decree as valid, and 

(ii) No court of last resort in the places 

where the parties lived when they were 

married or when the right to VA benefits 

arose has found the divorce decree 

invalid. 

(Authority: 38 U.S.C. 103(c), 501(a)) 

§ 5.195 Void marriages. 

A marriage is void if at least one party 

to the marriage did not meet the legal 

requirements for entering into the 

marriage at the time the marriage took 

place. Examples of void marriages 

include marriages in which at least one 

party was already married and 

marriages in which at least one party 

failed to meet the minimum age 

requirement for marriage. Whether a 

marriage is void will be determined 

under the law of the place that governs 

the marriage’s validity. See § 5.191, 

‘‘Marriages VA recognizes as valid.’’

(Authority: 38 U.S.C. 103(c), (d), (e); 501(a)) 

§ 5.196 Evidence of void or annulled 

marriages. 

(a) Void marriage. To establish that a 

marriage was void, VA must receive a 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55067 

certified statement from the claimant or 

beneficiary describing the facts that 

made the marriage void. VA may require 

the claimant or beneficiary to submit 

additional evidence as the individual 

circumstances may require. See also 

[regulation that will be published in a 

future Notice of Proposed Rulemaking] 

(defining ‘‘certified statement’’). 

(b) Annulled marriage. To establish 

that a marriage has been annulled, VA 

must receive a copy or abstract of the 

court’s annulment decree. VA will 

accept the decree as valid unless one of 

the following conditions applies: 

(1) The copy or abstract of the decree 

discloses irregularities. 

(2) VA has reason to question the 

court’s authority to issue the annulment 

decree. 

(3) There is evidence to show that the 

annulment might have been obtained by 

fraud of either party or by collusion of 

the parties. 

(Authority: 38 U.S.C. 103(d), (e), 501(a)) 

§ 5.197 Effective date of reduction or 

discontinuance of improved pension, 

compensation, or dependency and 

indemnity compensation due to marriage or 

remarriage. 

(a) Scope. This section provides 

effective date rules applicable when VA 

determines that a reduction or 

discontinuance of improved pension, 

compensation, or dependency and 

indemnity compensation is required 

based on the marriage or remarriage of 

a beneficiary, an apportionee of a 

beneficiary’s VA benefits, or a 

beneficiary’s dependent. 

(b) Effective date of reduction or 

discontinuance. (1) Beneficiary or 

apportionee. VA will pay the reduced 

rate or discontinue benefits effective the 

first day of the month in which the 

marriage or remarriage occurred. 

(2) Dependent of a beneficiary. VA 

will pay the reduced rate or discontinue 

benefits effective the first day of the 

month that follows the month in which 

the marriage or remarriage occurred. 

(Authority: 38 U.S.C. 5112(b)(1)) 

Cross Reference: § 5.477, ‘‘Effective dates 

for section 306 and old-law pension 

reductions or discontinuances.’’

§ 5.198 Effective date of reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation due to divorce or 

annulment. 

(a) Scope. This section provides 

effective date rules applicable when VA 

determines that a reduction or 

discontinuance of Improved Pension, 

compensation, or dependency and 

indemnity compensation is required 

based on termination of the marriage of 

a beneficiary due to divorce or 

annulment of the marriage. 

(b) Effective date of reduction or 

discontinuance. VA will pay the 

reduced rate or discontinue benefits 

effective the first day of the month that 

follows the month in which the divorce 

or annulment occurred. 

(Authority: 38 U.S.C. 5112(b)(2)) 

Cross Reference: § 5.477, Effective dates for 

section 306 and old-law pension reductions 

or discontinuances. 

§ 5.199 [Reserved] 

Surviving Spouse Status 

§ 5.200 Status as a surviving spouse. 

(a) General. A ‘‘surviving spouse’’ is a 

person who meets the following 

requirements: 

(1) Subject to § 5.201, ‘‘Surviving 

spouse status based on a deemed-valid 

marriage,’’ the person met the 

requirements in § 5.190, ‘‘Status as a 

spouse,’’ for being the veteran’s 

‘‘spouse’’ at the time the veteran died; 

(2) Except as otherwise provided in 

§ 5.203, ‘‘Effect of remarriage on a 

surviving spouse’s benefits,’’ the person 

has neither remarried nor, since the 

death of the veteran and after September 

19, 1962, held himself or herself out to 

the public, through a pattern or course 

of conduct, as the spouse of another 

person of the opposite sex with whom 

he or she has lived; and 

(3) Subject to paragraph (b) of this 

section, the person lived continuously 

with the veteran from the date of 

marriage to the date of the veteran’s 

death. 

(b) Continuous cohabitation. The 

following considerations apply, as 

applicable, in determining whether the 

requirement of paragraph (a)(3) of this 

section is met: 

(1) Person not at fault in the 

separation. (i) Criteria. Even if the 

veteran and the person separated during 

the marriage, the continuous 

cohabitation requirement of paragraph 

(a)(3) of this section will be considered 

met if the following requirements are 

met: 

(A) The person was not at fault in 

causing the separation, and 

(B) The veteran brought about the 

separation or the veteran’s misconduct 

caused the separation. 

(ii) When misconduct occurred. In 

determining who was at fault in causing 

the separation, VA will consider the 

veteran’s and the other person’s conduct 

at the time the separation took place, 

but not conduct taking place after the 

separation. 

(2) Separation by mutual consent. If 

the evidence shows that the veteran and 

the other person both consented to the 

separation, and that the intent of the 

person was not to desert the veteran or 

to abandon the marriage, but to 

accomplish some other purpose such as 

convenience, health, or business, then 

VA will not consider the separation to 

have broken the continuity of 

cohabitation. 

(3) Temporary separations. 

Temporary separations that ordinarily 

occur, regardless of who is at fault in 

bringing about the separation, do not 

break the continuity of cohabitation. 

(4) Statement as evidence. VA will 

accept the person’s statement explaining 

the reason for the separation from the 

veteran in the absence of contradictory 

information. 

(5) State law not controlling. State 

laws do not control VA’s assessment of 

whether separation has resulted from 

desertion. VA will, however, give due 

consideration to findings of fact made in 

court decisions dealing with this issue 

that were made during the lifetime of 

the veteran. 

(Authority: 38 U.S.C. 101(3), 501(a)) 

§ 5.201 Surviving spouse status based on 

a deemed-valid marriage. 

(a) Marriages deemed valid. VA will 

recognize a marriage to a veteran that 

does not meet the requirements of 

§ 5.191, ‘‘Marriages VA recognizes as 

valid,’’ as valid for the purposes of 

entitlement to VA death benefits if all 

the criteria in paragraphs (b) through (e) 

of this section are met. 

(b) Marriage requirement. The person 

and the veteran were purportedly 

married for at least one year before the 

veteran died, unless the person and the 

veteran had a child during or before the 

marriage. If a child was born of or before 

the marriage, the marriage could have 

existed for any length of time when the 

veteran died. See § 3.54(d) of this 

chapter (definition of ‘‘child born of the 

marriage’’). 

(c) No knowledge of legal 

impediment. At the time of the 

attempted marriage, the person did not 

know that there was a legal impediment 

to the marriage. VA follows these 

guidelines: 

(1) Only the person’s knowledge at 

the time of the attempted marriage, but 

not knowledge acquired after the 

marriage, is relevant. 

(2) Legal impediments include one of 

the parties being underage, one of the 

parties having a prior undissolved 

marriage at the time of the attempted 

marriage, and, in a jurisdiction that does 

not recognize common-law marriages, 

the parties’ failure to marry through a 

marriage ceremony. 

(3) If the person submits as proof of 

the marriage one of the kinds of 


sroberts on PROD1PC70 with PROPOSALS
55068 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

evidence listed in § 5.192(c), and 

satisfies the other requirements in this 

section, then VA will accept a signed 

statement from the person that he or she 

had no knowledge of the impediment to 

the marriage as proof of that fact, unless 

there is evidence showing otherwise. 

(d) Continuous cohabitation. The 

person lived with the veteran 

continuously from the day of the 

marriage to the day of the veteran’s 

death. The considerations for 

application in determining whether this 

requirement is satisfied are the same as 

those in § 5.200(b). 

(e) No other legal surviving spouse. 

No legal surviving spouse (one who 

qualifies as a ‘‘surviving spouse’’ under 

§ 5.200) has already filed a claim for 

death benefits for which that person 

meets all the legal and factual criteria 

and to which he or she has been 

determined by VA to be entitled. 

However, a legal surviving spouse’s 

entitlement to accrued benefits or 

benefits awarded, but unpaid at death, 

does not prevent another claimant from 

being considered the veteran’s surviving 

spouse through a marriage deemed valid 

under this section. 

(Authority: 38 U.S.C. 103(a), 501(a)) 

Cross References: [regulation that will be 

published in a future Notice of Proposed 

Rulemaking] (concerning deemed-valid 

marriages and Improved Death Pension 

adjusted annual income determinations); 

§§ 5.550 through 5.559 (concerning accrued 

benefits and benefits awarded, but unpaid at 

death). 

§ 5.202 Effect of Federal court decisions 

on remarriage determinations. 

(a) General rule. In determining 

eligibility for pension, death 

compensation, or dependency and 

indemnity compensation, VA will 

accept the decision of a Federal court 

that a surviving spouse has not 

remarried if the U.S. Government was a 

party to the case in which that decision 

was rendered. 

(b) Application to § 5.200(a)(2). This 

section does not apply to VA 

determinations regarding whether a 

surviving spouse has held himself or 

herself out openly to the public as the 

spouse of another person under 

§ 5.200(a)(2). 

(Authority: 38 U.S.C. 501(a)) 

§ 5.203 Effect of remarriage on a surviving 

spouse’s benefits. 

(a) General rule. Except as otherwise 

provided in this section, VA will not 

provide benefits governed by this part to 

a person as the surviving spouse of a 

veteran if either of the following 

applies: 

(1) The person has remarried. 

(2) The person has held himself or 

herself out as the spouse of another as 

described in § 5.200(a)(2). 

(Authority: 38 U.S.C. 101(3)) 

(b) Void or annulled remarriages. 

Remarriage will not prevent a surviving 

spouse from receiving VA benefits if the 

remarriage was either: 

(1) Void (see § 5.195, ‘‘Void 

marriages’’); or 

(2) Annulled by a court having 

authority to annul marriages, unless VA 

determines that the annulment was 

obtained through fraud by either party 

or by collusion of the parties. 

(Authority: 38 U.S.C. 103(d)(1)) 

(c) Reinstatement of eligibility for 

benefits for surviving spouses who, 

because of remarriage, may have been 

ineligible for benefits under laws in 

effect before January 1, 1971, and whose 

remarriages ended before November 1, 

1990. After December 31, 1970, none of 

the following will prevent a surviving 

spouse who may have been ineligible 

for VA benefits under laws in effect 

before January 1, 1971, because of 

remarriage from receiving benefits: 

(1) Remarriage that ended by death 

before November 1, 1990. 

(2) Remarriage that ended by divorce 

provided that proceedings began before 

November 1, 1990, unless VA 

determines that the divorce was 

obtained through fraud by the surviving 

spouse or by collusion of the parties. 

(3) Remarriage that was dissolved by 

a court with authority to render divorce 

decrees in legal proceedings begun by 

the surviving spouse before November 

1, 1990, unless VA determines that the 

divorce was obtained through fraud by 

the surviving spouse or by collusion of 

the parties. 

(4) The fact that the surviving spouse 

has lived with another person and has 

held himself or herself out openly to the 

public as the spouse of that person, 

provided that competent, credible 

evidence shows that the surviving 

spouse stopped living with that person 

and holding himself or herself out 

openly to the public as that person’s 

spouse before November 1, 1990. Such 

evidence may consist of the surviving 

spouse’s certified statement of the fact. 

(Authority: 38 U.S.C. 501(a); Sec. 4, Pub. L. 

91–376, 84 Stat. 789; Sec. 8004, Pub. L. 101–

508, 104 Stat. 1388–343; Sec. 502, Pub. L. 

102–86, 105 Stat. 424; Sec. 103, Pub. L. 102–

568, 106 Stat. 4322) 

(d) Reinstatement of eligibility for 

dependency and indemnity 

compensation (DIC) for surviving 

spouses who, because of remarriage, 

may have been ineligible for DIC under 

laws in effect before June 9, 1998—(1) 

Termination of remarriage. None of the 

following will prevent a surviving 

spouse who may have been ineligible 

for DIC under laws in effect before June 

9, 1998, because of remarriage from 

receiving benefits: 

(i) Remarriage ended by death; 

(ii) Remarriage ended by divorce, 

unless VA determines that the divorce 

was obtained through fraud by the 

surviving spouse or by collusion of the 

parties; or 

(iii) The fact that the surviving spouse 

has lived with another person and has 

held himself or herself out openly to the 

public as the spouse of that person, 

provided that competent, credible 

evidence shows that the surviving 

spouse stopped living with that person 

and holding himself or herself out 

openly to the public as that person’s 

spouse. Such evidence may consist of 

the surviving spouse’s certified 

statement of the fact. 

(2) Limitation. No payment may be 

made under this paragraph (d) for any 

month before October 1998. 

(Authority: 38 U.S.C. 103(d)(2); Sec. 8207, 

Pub. L. 105–178, 112 Stat. 495) 

(e) Remarriages after age 57.—(1) A 

surviving spouse’s remarriage after 

reaching the age of 57 will not prevent 

the surviving spouse from receiving DIC 

if the surviving spouse remarried after 

December 15, 2003. 

(2) No payment may be made under 

this paragraph (e) for any month before 

January 2004. 

(Authority: 38 U.S.C. 103(d)(2)(B); Sec. 101, 

Pub. L. 108–183, 117 Stat. 2652) 

§ 5.204 Effective date of discontinuance of 

VA benefits to a surviving spouse who 

holds himself, or herself, out as the spouse 

of another person. 

When a surviving spouse lives with 

another person of the opposite sex and 

holds himself or herself out openly to 

the public as the spouse of that person, 

VA will discontinue that surviving 

spouse’s benefits effective the first day 

of the month that the relationship 

began. 

(Authority: 38 U.S.C. 101(3), 5112(b)(1)) 

§ 5.205 Effective date of resumption of 

benefits to a surviving spouse due to 

termination of a remarriage. 

(a) Void remarriage. The effective date 

of an award resumed because a 

surviving spouse’s remarriage is void is 

the later of the following dates: 

(1) The date the surviving spouse and 

the other person stopped living together; 

or 

(2) The date VA receives an 

application from the surviving spouse 

for resumption of benefits. 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55069 

(b) Annulment. The effective date of 

an award resumed because a surviving 

spouse’s remarriage is annulled is: 

(1) The date the annulment decree 

became final, if the surviving spouse 

files an application for resumption of 

benefits within one year of that date; 

otherwise, 

(2) The date VA receives an 

application for resumption of benefits. 

(c) Divorce. The effective date of an 

award resumed because a surviving 

spouse’s remarriage ends in divorce, 

provided the surviving spouse meets the 

requirements of § 5.203(c) and (d) for 

reinstatement, is: 

(1) The date the divorce decree 

became final if the surviving spouse 

files an application for resumption of 

benefits within one year of that date; 

otherwise, 

(2) The date VA receives an 

application for resumption of benefits. 

(d) Death. The effective date of an 

award resumed because a surviving 

spouse’s remarriage ends due to a death, 

provided the surviving spouse meets the 

requirements of § 5.203 is: 

(1) The date of death, if the surviving 

spouse files an application for 

resumption of benefits within one year 

of that date; otherwise, 

(2) The date VA receives an 

application for resumption of benefits. 

(Authority: 38 U.S.C. 5110(a), (k), (l)) 

§ 5.206 Effective date of resumption of 

benefits to a surviving spouse who stops 

holding himself, or herself, out as the 

spouse of another. 

The effective date of an award 

resumed because a surviving spouse no 

longer holds himself or herself out as 

the spouse of another is the date the 

surviving spouse stopped living with 

that person and holding himself or 

herself out openly to the public as that 

person’s spouse, but not earlier than the 

date VA receives an application for 

benefits. 

(Authority: 38 U.S.C. 103(d)(3), 5110(a)) 

§§ 5.207–5.219 [Reserved] 

Child Status 

§ 5.220 Status as a child for VA benefit 

purposes. 

The following criteria must be met for 

a person to be recognized as a ‘‘child’’

for the purpose of VA benefits governed 

by this part: 

(a) Marital status. Except as provided 

in § 5.228, ‘‘Exceptions applicable to 

termination of child status based on 

marriage of the child,’’ the person must 

be unmarried. 

(b) Age. (1) General rule. The person 

must be under 18 years of age. 

(2) Exceptions. The person may be 18 

years of age or older under either of the 

following conditions: 

(i) The person, before reaching 18 

years of age, became permanently 

incapable of self-support through his or 

her own efforts by reason of physical or 

mental disability (see § 5.227, ‘‘Child 

status based on permanent incapacity 

for self-support’’) or 

(ii) The person is under 23 years of 

age and is pursuing a course o of 

instruction at an educational institution 

approved by the Department of Veterans 

Affairs. For the purposes of this section, 

the term ‘‘educational institution’’

means a permanent organization that 

offers courses of instruction to a group 

of students who meet its enrollment 

criteria. The term includes schools, 

colleges, academies, seminaries, 

technical institutes, and universities. 

The term also includes home schools 

that operate in compliance with the 

compulsory attendance laws of the 

States in which they are located, 

whether treated as private schools or 

home schools under State law. The term 

‘‘home schools’’ is limited to courses of 

instruction for grades kindergarten 

through 12. 

(c) Relationship. The person must 

bear one of the following relationships 

to the veteran: 

(1) The veteran’s natural child. 

(2) The veteran’s stepchild who 

became a stepchild under one of the 

following conditions: 

(i) The person became the veteran’s 

stepchild before reaching 18 years of age 

and is a member of the veteran’s 

household, or was a member of the 

veteran’s household at the time of the 

veteran’s death, or 

(ii) The person is a person described 

in paragraph (b)(2)(ii) of this section 

who became the veteran’s stepchild 

after reaching 18 years of age, but before 

reaching 23 years of age, and who is a 

member of the veteran’s household or 

was a member of the veteran’s 

household at the time of the veteran’s 

death. 

(3) The veteran’s legally adopted 

child. See § 5.222, ‘‘Adoption 

arrangements recognized by VA.’’ The 

person must have been adopted by the 

veteran before the person reached 18 

years of age, except for the following 

persons: 

(i) A person who became permanently 

incapable of self-support before 

reaching 18 years of age and was a 

member of the veteran’s household at 

the time he or she became 18 years of 

age, or 

(ii) A person described in paragraph 

(b)(2)(ii) of this section who was 

adopted after reaching 18 years of age, 

but before reaching 23 years of age. 

(Authority: 38 U.S.C. 101(4)(A), 104, 501(a)) 

§ 5.221 Evidence to establish a parentnatural child relationship. 

(a) Parents married at date of child’s 

birth. If additional evidence of 

relationship is required under § 5.180(c) 

and the parents were married to each 

other at the time of the child’s birth, a 

claimant or beneficiary may prove a 

parent-natural child relationship as 

follows: 

(1) Mother. Any of the evidence 

described in § 5.229, ‘‘Proof of age and 

birth,’’ that shows a mother-natural 

child relationship may be used to 

establish such a relationship. 

(2) Father. Any of the evidence 

described in § 5.229, ‘‘Proof of age and 

birth,’’ that shows a father-natural child 

relationship may be used to establish 

such a relationship. If such evidence 

does not show that a male who was 

married to the child’s mother when the 

child was born is the child’s father, or 

shows someone else as the child’s 

father, VA will evaluate the facts 

surrounding the case, make any 

necessary requests for evidence and 

information, and then determine 

whether or not the male is the child’s 

natural parent. 

Note to paragraph (a)(2): The fact that the 

evidence does not establish a father-natural 

child relationship between a child and a 

male married to the child’s mother at the 

time of the child’s birth does not preclude 

VA recognition of that child as that male’s 

stepchild under the provisions of § 5.226, 

‘‘Child status based on being a veteran’s 

stepchild,’’ where applicable. 

(b) Parents unmarried at date of 

child’s birth. If additional evidence of 

relationship is required under § 5.180(c) 

and the parents were not married to 

each other at the time of the child’s 

birth, a claimant or beneficiary may 

prove a parent-natural child 

relationship as follows: 

(1) Mother. Any of the evidence 

described in § 5.229, ‘‘Proof of age and 

birth,’’ that shows a mother-natural 

child relationship may be used to 

establish such a relationship. 

(2) Father. Any one of the following 

may be used to establish a father-natural 

child relationship: 

(i) A male’s statement in writing and 

signed by him acknowledging himself as 

the natural father of the child; 

(ii) Evidence showing that a specific 

male has been identified as the child’s 

father by judicial decree; or 

(iii) Other competent evidence 

showing that a child is the natural child 

of a specific male, including any of the 

following: 


sroberts on PROD1PC70 with PROPOSALS
55070 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

(A) A copy of the public record of 

birth or a church record of baptism 

showing that a specific male was the 

informant and was named as the parent 

of the child, 

(B) Statements from individuals who 

know that a specific male accepted the 

child as his own, or 

(C) Service department records or 

public records, such as records from 

schools or welfare agencies, showing 

that, with his knowledge, a specific 

male was named as the child’s father. 

(Authority: 38 U.S.C. 101(4), 501(a)) 

§ 5.222 Adoption arrangements 

recognized by VA. 

(a) Scope. This section describes the 

types of adoption arrangements and 

evidence of those arrangements that VA 

will accept as proof of an adoption for 

purposes of establishing a person as a 

child under § 5.220, ‘‘Status as a child 

for VA benefit purposes.’’

(b) Establishing a legal adoption. Any 

one of the following establishes a child’s 

adoption into a family: 

(1) A final adoption decree. 

(2) A revised birth certificate showing 

the child as the child of the adopting 

parent(s) in cases where release of 

adoption documents or information is 

prohibited or requires petition to a court 

(records sealed by a court, for example). 

(3) An interlocutory (temporary) 

adoption decree, provided that the 

decree has not been rescinded or 

superseded and the child remains in the 

custody of the adopting parent(s) during 

the interlocutory period. 

(4) An adoption placement agreement 

between a parent, or parents, and an 

agency authorized by law to arrange 

adoptions. VA will recognize such an 

agreement for the duration of its term, 

provided that the adoptive parent(s) 

maintain custody of the child. 

(Authority: 38 U.S.C. 101(4)) 

§ 5.223 Child adopted after a veteran’s 

death recognized as the veteran’s child. 

(a) Circumstances under which 

adoption will be recognized. VA will 

recognize a person adopted by a 

veteran’s surviving spouse as the 

veteran’s child as of the date of the 

veteran’s death if all of the following 

conditions are met: 

(1) The adoption took place under a 

decree issued within two years of the 

veteran’s death; 

(2) The person adopted was living in 

the veteran’s household at the time of 

the veteran’s death; and 

(3) At the time of the veteran’s death 

the person adopted was not receiving 

regular contributions sufficient to 

provide for the major portion of the 

child’s support, from any public or 

private welfare organization that 

furnishes services or assistance for 

children or from a person other than the 

veteran or the veteran’s spouse. 

(b) Evidence. In the absence of 

information to the contrary, VA will 

accept the statement of the surviving 

spouse or the custodian of the child that 

the requirements described in 

paragraphs (a)(2) and (a)(3) of this 

section have been met. 

(Authority: 38 U.S.C. 101(4)) 

§ 5.224 Child status despite adoption out 

of a veteran’s family. 

(a) Retention of eligibility for VA 

benefits. The adoption of a veteran’s 

child out of the veteran’s family, 

whether before or after the veteran’s 

death, does not terminate that person’s 

status as the veteran’s child for purposes 

of eligibility for VA benefits. 

(b) Evidence.—(1) Evidence of 

adoption where release of adoption 

records is restricted or prohibited. To 

establish status as a veteran’s child for 

a child who was adopted out of a 

veteran’s family, in those jurisdictions 

where a petition must be made to a 

court for release of documents or 

information or when release of such 

documents or information is prohibited, 

either of the following will be accepted 

as proof of status as the veteran’s child: 

(i) A statement over the signature of 

the judge or the clerk of the court setting 

forth the child’s former name and the 

date of adoption. 

(ii) A certified statement by the 

veteran, the veteran’s surviving spouse, 

a person receiving an apportionment of 

benefits, or their fiduciaries setting forth 

the child’s former name, the child’s date 

of birth, and the date and fact of 

adoption together with evidence 

indicating that the child’s original 

public record of birth has been removed 

from such records. 

(2) Evidence of child-natural parent 

relationship in apportionment cases. If 

VA receives an application for an 

apportionment under § 3.458(d) of this 

chapter on behalf of a child adopted out 

of a veteran’s family, the evidence must 

be sufficient to establish the veteran as 

the natural parent of the child. See 

§ 5.221, ‘‘Evidence to establish a parentnatural child relationship.’’

(Authority: 38 U.S.C. 501(a)) 

§ 5.225 Child status based on adoption 

into a veteran’s family under foreign law. 

(a) General.—(1) Purpose. VA will 

apply the provisions of this section to 

determine the validity of an adoption 

for VA benefit purposes when a person 

was adopted into a veteran’s family 

under the laws of a foreign country. 

(2) Foreign country. For purposes of 

this section, the term ‘‘foreign country’’

means a place other than a State as 

defined in § 3.1(i) of this chapter and 

other than the Commonwealth of the 

Northern Mariana Islands. 

(3) Inclusion of certain Philippine 

veterans. For purposes of this section, 

the term ‘‘veteran’’ includes a 

Commonwealth Army veteran or new 

Philippine Scout as defined in 38 U.S.C. 

3566. 

(b) Living veteran—adopted person 

living in a foreign country.—(1) 

Requirements for recognition of 

adoption. If the veteran is alive and the 

person adopted under the law of a 

foreign country lives in a foreign 

country, VA will recognize the person’s 

adoption as valid if all of the following 

conditions are met: 

(i) The person was under age 18 when 

adopted; 

(ii) The veteran provides one-half or 

more of the person’s support; 

(iii) The person’s natural parent does 

not have custody of the person (this 

requirement does not apply if the 

natural parent is also the veteran’s 

spouse); and 

(iv) The person lives with the veteran 

or with the divorced spouse of the 

veteran if the divorced spouse is also 

the natural or adoptive parent. This 

requirement does not apply when the 

person is attending an educational 

institution full-time, or when the 

person, the veteran, or the divorced 

spouse is confined in a hospital, nursing 

home, other institution, or other healthcare facility. 

(2) Continuing requirements. The 

requirements noted in paragraphs 

(b)(1)(ii) through (iv) of this section 

must continue to be met following the 

adoption. VA may from time to time 

verify that these requirements are being 

met after the initial award of benefits to 

or based on the existence of the child. 

A beneficiary’s failure to provide 

verifying information or documents 

upon VA’s request may result in 

suspension or discontinuance of 

payments until VA receives proof that 

the requirements are still met. 

(c) Living veteran—adopted person 

not living in a foreign country. If the 

veteran is alive and the person adopted 

under foreign law does not live in a 

foreign country, VA will determine the 

validity of the adoption under §§ 5.220, 

‘‘Status as a child for VA benefit 

purposes,’’ and 5.222, ‘‘Adoption 

arrangements recognized by VA.’’

(d) Deceased veteran and surviving 

spouse adoptions. (1) Applicability. 

This paragraph (d) applies if a veteran 

adopted a person under the laws of a 

foreign country, but the parent-child 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55071 

relationship had not been established 

for VA purposes during the veteran’s 

lifetime. This paragraph (d) also applies 

if a surviving spouse adopted a person 

under the laws of a foreign country after 

the veteran’s death. 

(2) Requirements for recognition of 

adoption. VA will recognize the 

person’s adoption as valid if the veteran 

was entitled to and was receiving a VA 

dependent’s allowance or similar VA 

monetary benefit for the person at any 

time within one year before the 

veteran’s death or if all of the following 

conditions are met: 

(i) The person was under age 18 when 

adopted, and 

(ii) All of the following conditions 

were met for at least one year before the 

veteran’s death: 

(A) The veteran provided one half or 

more of the person’s support, 

(B) The person’s natural parent did 

not have custody of the person unless 

the natural parent is the veteran’s 

surviving spouse, and 

(C) The person lived with the veteran 

or with the divorced spouse of the 

veteran if the divorced spouse is also 

the natural or adoptive parent. This 

requirement does not apply when the 

person is attending an educational 

institution full-time, or when the 

person, the veteran, or the divorced 

spouse is confined in a hospital, nursing 

home, other institution, or other healthcare facility. 

(3) Additional requirements when the 

person was adopted by a surviving 

spouse after the veteran’s death. In the 

case of adoption by a surviving spouse 

after the veteran’s death, the adoption 

must also meet the requirements of 

§ 5.223, ‘‘Child adopted after a veteran’s 

death recognized as the veteran’s child.’’

(Authority: 38 U.S.C. 101(4), 501(a)) 

§ 5.226 Child status based on being a 

veteran’s stepchild. 

(a) Definitions. The following 

definitions apply for purposes of this 

section: 

(1) Stepchild means a natural or 

adopted child of a veteran’s spouse, but 

not of the veteran, to include the child 

of a surviving spouse whose marriage to 

the veteran is deemed valid under the 

provisions of § 5.201, ‘‘Surviving spouse 

status based on a deemed-valid 

marriage.’’

(2) Veteran-stepchild relationship 

means a relationship between the 

veteran and the stepchild that meets the 

requirements of § 5.220(c)(2). 

(b) Proof of veteran-stepchild 

relationship. Proof of the veteranstepchild relationship must include, in 

addition to evidence that the criteria 

described in § 5.220(c)(2) are met, 

evidence of both of the following: 

(1) The child is related to the spouse 

of the veteran by birth or adoption; and 

(2) The veteran is or, in the case of a 

deceased veteran, was at the time of his 

or her death married to the natural or 

adoptive parent of the child. 

(c) Member of veteran’s household. 

VA will consider a stepchild as being or 

having been a member of the veteran’s 

household for purposes of § 5.220(c)(2) 

when either of the following conditions 

are met: 

(1) The child resides with the veteran 

or resided with the veteran on the date 

the veteran died; or 

(2) The stepchild does not reside with 

the veteran or did not reside with the 

veteran on the date the veteran died, but 

the stepchild receives or received at 

least half of his or her support from the 

veteran. This includes a stepchild living 

apart from the veteran solely for 

medical, school, or similar reasons and 

a stepchild who is living with another 

person who has legal custody of the 

child. 

(d) Effect of termination of marriage 

or legal separation on stepchild 

relationship—(1) General rule. 

Termination of a marriage, or formal 

legal separation, between a veteran and 

a stepchild’s natural or adoptive parent 

terminates the veteran-stepchild 

relationship. 

(2) Exception. The veteran-stepchild 

relationship remains intact if either: 

(i) The stepchild continues to live 

with the veteran, or 

(ii) The veteran continues to provide 

at least half of the stepchild’s support. 

(3) If the marriage between a veteran 

and a stepchild’s natural or adoptive 

parent ended, or they legally separated, 

before the date of the veteran’s 

entitlement to VA benefits, the stepchild 

can still be established as the veteran’s 

child provided the validity of the 

marriage can be proved and the 

stepchild continues after termination of 

the marriage to be a member of the 

veteran’s household as defined in 

paragraph (c) of this section. 

(Authority: 38 U.S.C. 101(4), 501(a)) 

§ 5.227 Child status based on permanent 

incapacity for self-support. 

(a) Applicability. This section sets out 

criteria VA uses to determine whether a 

person can be recognized as a ‘‘child’’

for VA benefit purposes under 

§ 5.220(b)(2)(i) after reaching 18 years of 

age because the person became 

permanently incapable of self-support 

before reaching the age of 18. 

(b) Determining incapacity for selfsupport. The principal factors VA 

considers in determining whether a 

person is capable of self-support are: 

(1) Employment history. (i) Productive 

employment. A person who by his or 

her own efforts earns sufficient income 

for his or her reasonable support is not 

incapable of self-support. 

(ii) Intermittent employment. 

Employment that is only part of a tryout 

or that is casual, intermittent, 

unsuccessful, or terminated after a short 

period by reason of disability does not 

preclude a finding of incapacity of selfsupport due to mental or physical 

disability that is otherwise established 

under this section. 

(iii) Charitable or therapeutic 

employment. VA will not find capacity 

for self-support based on employment 

afforded solely upon sympathetic, 

therapeutic, or charitable considerations 

and that involves no actual or 

substantial provision of services. 

(iv) Lack of employment. Evidence 

that a person was not employed before 

or after reaching 18 years old tends to 

show incapacity for self-support when 

the lack of employment was due to the 

person’s physical or mental disabilities 

and not due to unwillingness to work or 

other factors unrelated to the person’s 

disability. 

(2) Nature and extent of disability. (i) 

In cases where the person is not 

provided with sufficient income for his 

or her reasonable support by his or her 

own efforts, VA will consider the 

following: 

(A) Whether the extent and nature of 

disability would render the average 

person incapable of self-support; 

(B) The impact of the disability on the 

person’s ability to care for himself or 

herself and to perform the ordinary 

tasks expected of a person of the same 

age; and 

(C) Whether the person attended 

school, and the highest grade 

completed. 

(ii) Rating criteria applicable to 

disabled veterans set out in part 4 of this 

chapter are not controlling. 

(c) Determining permanence of 

incapacity. (1) Principal factors. The 

principal factors for determining 

whether incapacity is permanent 

include the following: 

(i) The nature and extent of disability; 

(ii) Whether the disability has 

worsened or improved over time; and 

(iii) Whether there is a reasonable 

possibility that the disability will 

improve in the future. 

(2) Case-by-case determinations. (i) 

VA will determine the person’s 

permanent incapacity for self-support 

on a case-by-case basis based on the 

evidence of record. 


sroberts on PROD1PC70 with PROPOSALS
55072 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

(ii) Evidence VA will consider may 

include: 

(A) A VA examination if deemed 

necessary. 

(B) Medical or psychiatric 

examination or treatment records. 

(C) Statements of persons having 

knowledge of the facts who have 

observed the child’s condition, such as 

teachers, tutors, or social workers, or 

statements from institutions where the 

child received care, schooling, or other 

related services. 

(iii) VA may consider relevant 

evidence dated before or after the child 

reached 18 years of age. 

(d) Revision of child status 

determinations.—(1) Certain protection 

provisions inapplicable. A VA 

determination that a child is 

permanently incapable of self-support is 

not subject to protection under 

§ 3.951(b) or § 3.952 of this chapter. 

(2) Reexamination. Only in unusual 

cases will VA request reexamination 

after it has found that a child is 

permanently incapable of self-support. 

(3) Intermittent employment. A child 

previously shown by competent 

evidence to have been permanently 

incapable of self-support before 

reaching 18 years of age may be held to 

remain so at a later date even though 

there may have been a short intervening 

period or periods of employment of the 

type described in paragraph (b)(1)(ii) of 

this section, provided the cause of the 

incapacity is the same as that upon 

which VA previously found permanent 

incapacity and there was no intervening 

disease or injury that could be 

considered a major factor in current 

incapacity. 

(4) Court competency findings. If VA 

receives evidence that shows that a 

child formerly found by VA to have 

been permanently incapable of selfsupport before reaching 18 years of age 

based on mental incompetency has been 

found competent by a court, VA will 

determine whether the child continues 

to be permanently incapable of selfsupport under this section. Such court 

determinations are not binding upon 

VA. 

(Authority: 38 U.S.C. 101(4)(A)(ii); 501(a)) 

§ 5.228 Exceptions applicable to 

termination of child status based on 

marriage of the child. 

(a) Applicability. This section states 

exceptions to the requirement in 

§ 5.220(a) that for a person to have 

status as a ‘‘child’’ for VA benefit 

purposes that person must be 

unmarried. 

(b) Rule inapplicable to chapter 18 

benefits. The requirement that the child 

of a veteran be unmarried does not 

apply to benefits for birth defects of the 

children of certain veterans under 38 

U.S.C. chapter 18 (Benefits for Children 

of Vietnam Veterans). 

(c) Termination of marriage. A child’s 

marriage will not prevent a child from 

receiving benefits or a claimant or 

beneficiary from receiving benefits 

based on the existence of a child if the 

child’s marriage: 

(1) Was void (for a definition of a 

‘‘void’’ marriage, see § 5.195, ‘‘Void 

marriages’’); 

(2) Was annulled by a court having 

authority to annul marriages, unless VA 

determines that the annulment was 

obtained through fraud by either party 

or by collusion of the parties (see 

§ 5.196, ‘‘Evidence of void or annulled 

marriages’’); 

(3) Ended by death before November 

1, 1990; or 

(4) Ended by divorce before November 

1, 1990, by a court with authority to 

render divorce decrees, unless VA 

determines that the divorce was 

obtained through fraud by either party 

or by collusion of the parties. 

(Authority: 38 U.S.C. 101(4), 103(e), 501(a), 

1821, 1831; Sec. 9, Pub. L. 93–527, 88 Stat. 

1702, 1705; Sec. 8004, Pub. L. 101–508, 104 

Stat. 1388, 1388–343) 

§ 5.229 Proof of age and birth. 

(a) Proof of birth in preferred order. 

The classes of evidence to be furnished 

for the purpose of establishing age or 

birth are listed below in the order of 

preference. Failure to furnish more 

preferred evidence, however, does not 

preclude the acceptance of less 

preferred evidence if the evidence 

furnished is sufficient to prove the point 

involved. See also § 5.180(e), 

‘‘Acceptability of photocopies.’’

(1) A birth certificate (copy or 

abstract), subject to paragraph (b) of this 

section; 

(2) Church record of baptism (original 

or copy), subject to paragraph (b) of this 

section; 

(3) Service department records of 

birth; 

(4) An affidavit or certified statement 

from a physician or midwife present 

during the birth; 

(5) A copy of a Bible or other family 

record containing reference to the birth. 

The copy must be accompanied by a 

statement from a notary public, or other 

officer who has authority to administer 

oaths, certifying all the following 

criteria: 

(i) The year the Bible or other family 

record was printed; 

(ii) Whether it appears the record has 

been erased or changed in any way; 

(iii) Whether it appears the entries 

were made on the date noted in the 

record. 

(6) Affidavits or certified statements 

from two or more persons, preferably 

disinterested, who have knowledge of 

the name of the person born; the month, 

year, and place of birth of that person; 

and the parents’ names. These persons 

must also provide VA with their own 

ages and an explanation as to how they 

came to know the facts surrounding the 

birth; or 

(7) Other reliable and convincing 

evidence that provides relevant 

information. This includes any of the 

following: 

(i) Census records. 

(ii) Hospital records. 

(iii) Insurance policies. 

(iv) School records. 

(v) Employment records. 

(vi) Naturalization records. 

(vii) Immigration records. 

(b) Overcoming lack of 

contemporaneous evidence. VA will 

accept as proof of age or relationship: 

(1) A copy or abstract of the public 

record of birth established more than 4 

years after the birth if it is consistent 

with material on file with VA, or if it 

shows on its face that it is based upon 

evidence that would be acceptable 

under this section. 

(2) An original or a copy of a church 

record of baptism performed more than 

4 years after the birth if it is consistent 

with material on file with VA. Such 

material must include at least one 

reference to age or relationship made 

when such a reference was not essential 

to establishing entitlement to the benefit 

claimed. 

(Authority: 38 U.S.C. 501(a)) 

§ 5.230 Effective date of award of pension 

or dependency and indemnity 

compensation to, or based on the existence 

of, a child born after the veteran’s death. 

(a) Applicability. The section provides 

the effective date of an award of pension 

or dependency and indemnity 

compensation (DIC) to, or an increase in 

such an award based on the existence 

of, a child born after the death of the 

parent-veteran upon whom eligibility 

for the award is based. 

(b) Effective date. (1) The effective 

date is the date the child was born, if 

VA receives either of the following 

within the time specified: 

(i) Proof of birth received within one 

year of the date of birth; or 

(ii) Notification of the expected or 

actual birth received within one year 

after the veteran’s death, provided that 

the notice is sufficient to indicate an 

intent to apply for pension or DIC 

benefits described in paragraph (a) of 

this section. 

(2) In all other cases, the effective date 

of the award or increase is the date VA 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 55073 

receives an application for pension or 

DIC benefits described in paragraph (a) 

of this section. 

(Authority: 38 U.S.C. 5110(a), (n)) 

§ 5.231 Effective date of reduction or 

discontinuance—child reaches age 18 or 

23. 

(a) Applicability. The effective date 

rule in this section applies to the 

reduction or discontinuance of pension, 

compensation, or dependency and 

indemnity compensation required when 

a person no longer qualifies as a child 

for VA benefit purposes under § 5.220(b) 

because the person has reached 18 years 

of age or is attending an approved 

educational institution and has reached 

23 years of age. 

(b) Effective date. VA will pay a 

reduced rate or discontinue benefits 

effective on the child’s 18th or 23rd 

birthday, as applicable. 

(Authority: 38 U.S.C. 5112(a)) 

Note to § 5.231: For effective dates of 

reductions or discontinuance applicable 

when a child completes the course of 

education or otherwise terminates school 

attendance prior to his or her 23rd birthday, 

see § 3.667 of this chapter. 

§ 5.232 Effective date of reduction or 

discontinuance—terminated adoptions. 

(a) Applicability. The effective date 

rule in this section applies to the 

reduction or discontinuance of pension, 

compensation, or dependency and 

indemnity compensation required when 

a person no longer qualifies as a child 

for VA benefit purposes as an adopted 

child under §§ 5.220(c)(3) and § 5.222, 

‘‘Adoption arrangements recognized by 

VA.’’

(b) Effective date. When an adoption 

terminates, VA will pay a reduced rate 

or discontinue benefits on the earliest of 

the following dates, as applicable: 

(1) The day after the day the child left 

the custody of the adopting parent 

during the interlocutory period; 

(2) The day after the day the child left 

the custody of the adopting parent 

during the term of an adoption 

placement agreement; 

(3) The day after the date of rescission 

of the adoption decree; or 

(4) The day after the date of 

termination of the adoption placement 

agreement. 

(Authority: 38 U.S.C. 5112(a)) 

§ 5.233 Effective date of reduction or 

discontinuance—stepchild no longer a 

member of the veteran’s household. 

(a) Applicability. The effective date 

rule in this section applies to the 

reduction or discontinuance of pension, 

compensation, or dependency and 

indemnity compensation required when 

a person no longer qualifies as a child 

for VA benefit purposes as a stepchild 

under § 5.220(c)(2) because the person is 

no longer a member of the veteran’s 

household. See § 5.226(c) (defining 

‘‘member of the veteran’s household’’). 

(b) Effective date. VA will pay a 

reduced rate or discontinue benefits 

when a stepchild is no longer a member 

of the veteran’s household effective the 

day following the date the child ceased 

being a member of the household. 

(Authority: 38 U.S.C. 5112(a)) 

§ 5.234 Effective date of an award, 

reduction, or discontinuance of benefits 

based on child status due to permanent 

incapacity for self-support. 

(a) Applicability. This section 

provides the effective dates for an 

award, a reduction, or a discontinuance 

of pension, compensation, or 

dependency and indemnity 

compensation to, or based upon the 

existence of, a person who is a ‘‘child’’

for VA benefit purposes under 

§ 5.220(b)(2)(i) because the person 

became permanently incapable of selfsupport before reaching the age of 18 or 

due to termination of such child status 

because the person is no longer 

incapable of self-support. 

(b) Awards.—(1) Initial awards. The 

effective dates of initial awards are 

governed by applicable effective date 

rules in § 5.183, ‘‘Effective date for 

additional benefits based on the 

existence of a dependent.’’

(2) Claim for continuation of benefits. 

The effective date of a continuation of 

benefits previously awarded to, or based 

upon the existence of, a child after the 

child reaches 18 years of age is the date 

of the child’s 18th birthday if VA 

receives an application for the 

continuation of such benefits based 

upon the child’s permanent incapacity 

for self-support not later than one year 

after the child’s 18th birthday. 

Otherwise, the effective date is the date 

VA receives an application for benefits. 

(c) Reduction or discontinuance of VA 

benefits. (1) Pension benefits. VA will 

pay the reduced rate or discontinue 

pension benefits because the person 

recognized as a child is no longer 

incapable of self-support effective the 

first day of the month that follows the 

month in which VA last paid benefits. 

(2) Compensation or dependency and 

indemnity compensation benefits. VA 

will pay the reduced rate or discontinue 

compensation or dependency and 

indemnity compensation benefits 

because the person recognized as a child 

is no longer incapable of self-support 

effective the first day of the month 

following expiration of the 60-day 

notice period described in § 5.83, ‘‘Right 

to notice of decisions and proposed 

adverse actions.’’

(Authority: 38 U.S.C. 5110, 5112) 

§ 5.235 Effective date of an award of 

benefits due to termination of a child’s 

marriage. 

(a) Applicability. This section states 

the effective dates of awards to, or based 

upon the existence of, a child when 

status as a child for the purpose of VA 

benefits has been restored due to 

termination of the child’s marriage. See 

§ 5.228. ‘‘Exceptions applicable to 

termination of child status based on 

marriage of the child.’’

(b) Effective date.—(1) Void 

marriages. If a child’s marriage is void, 

the effective date of an award of benefits 

is the later of the following dates: 

(i) The date the child and the other 

person stopped living together; or 

(ii) The date VA receives an 

application for benefits. 

(2) Annulled marriages. If a child’s 

marriage is annulled, the effective date 

for an award of benefits is: 

(i) The date the annulment decree 

became final, if VA receives an 

application for benefits within one year 

of that date; otherwise, 

(ii) The date VA receives an 

application for benefits. 

(3) Marriage terminated by death or 

divorce before November 1, 1990. 

Awards under § 5.228(c)(3) or (4) 

(pertaining to marriages terminated by 

death or divorce prior to November 1, 

1990) are effective on the date VA 

receives an application for benefits. 

(Authority: 38 U.S.C. 501(a), 5110(a), (k), (l); 

Sec. 9, Pub. L. 93–527, 88 Stat. 1702, 1705; 

Sec. 8004, Pub. L. 101–508, 104 Stat. 1388, 

1388–343) 

§§ 5.236–5.239 [Reserved] 

Parent Status 

§ 5.240 Status as a veteran’s parent. 

(a) Persons who qualify as a veteran’s 

parent for VA purposes. Except as 

otherwise provided in this section and 

subject to the requirements of this 

subpart concerning proof of the 

relationship described, a parent of a 

veteran is one of the following: 

(1) A veteran’s natural mother or 

father, 

(2) A veteran’s mother or father 

through adoption, or 

(3) A person who stands in the 

relationship of a parent to a veteran, 

subject to the following requirements: 

(i) The person must have stood in the 

relationship of a parent to the veteran 

for a period of not less than 1 year at 

any time before the veteran’s entry into 

active military service, and 

(ii) Such a relationship must have 

begun prior to the veteran’s 21st 


sroberts on PROD1PC70 with PROPOSALS
55074 Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / Proposed Rules 

birthday, although it may have ended 

before, on, or after that birthday. 

(b) Institutions do not qualify. VA will 

not recognize an institution as a 

veteran’s parent, even if the institution 

is providing care for the veteran in place 

of a parent. 

(c) Natural parent who was not 

married to the other natural parent at 

the time of the veteran’s birth. VA will 

recognize a natural parent who was not 

married to the veteran’s other natural 

parent at the time of birth as a veteran’s 

parent for VA purposes if the 

requirements of § 5.221, ‘‘Evidence to 

establish a parent-natural child 

relationship,’’ are met and that natural 

parent did one or both of the following: 

(1) Accepted the veteran as a member 

of his or her household. 

(2) Provided substantial financial 

support to the veteran consistently from 

the date of the veteran’s birth until the 

veteran reached the age of 21, married, 

or entered active military service. 

(d) Abandonment. VA will not 

provide benefits to a person based on 

that person’s status as a veteran’s 

natural or adoptive parent if that person 

abandoned the veteran unless that 

person subsequently assumed the legal 

and moral obligations of a parent with 

respect to the veteran. For purposes of 

this paragraph, abandoned means that a 

veteran’s natural or adoptive parent did 

not assume the legal and moral 

obligations of a parent with respect to 

the veteran. Abandonment implies not 

just a failure to provide support, but a 

refusal to do so. It is not necessary to 

show that someone else assumed the 

parental relationship for abandonment 

to occur. 

(e) Not more than one mother and one 

father recognized.—(1) General rule. VA 

will recognize not more than one father 

and not more than one mother as 

parents of a veteran. 

(2) Different persons qualified as a 

veteran’s mother or father at different 

times. (i) If two or more persons 

qualified as a veteran’s mother or father 

under this section at different points in 

time, VA will recognize the person who 

last qualified before the veteran’s last 

entry into active military service as the 

veteran’s mother or father. 

(ii) VA will recognize a veteran’s 

natural parent who was the last person 

to have a parental relationship to the 

veteran before the veteran last entered 

active military service as the mother or 

father of the veteran even though that 

parent’s parental rights have been 

terminated by a court. 

(f) A person claims status as a 

veteran’s mother or father under 

paragraph (a)(3) of this section while the 

veteran’s natural or adoptive mother or 

father is still living. VA will not 

recognize a person as the veteran’s 

mother or father under paragraph (a)(3) 

of this section if the veteran’s natural or 

adoptive mother or father was living at 

the time the person claims to have stood 

in the relationship of a mother or father 

to the veteran unless the natural or 

adoptive mother or father had 

relinquished parental control of the 

veteran. For purposes of this paragraph, 

relinquished parental control means 

that a veteran’s natural or adoptive 

parent ceased to provide for the child 

and that the parent and child 

relationship was broken. It is not 

necessary that a court have terminated 

parental rights. Relinquishment of 

control does not necessarily mean 

abandonment by the parent. However, a 

finding of abandonment would 

automatically establish relinquishment 

of control. 

(Authority: 38 U.S.C. 101(5), 501(a)) 

§§ 5.241–5.249 [Reserved] 

[FR Doc. 06–7759 Filed 9–19–06; 8:45 am] 

BILLING CODE 8320–01–P 


sroberts on PROD1PC70 with PROPOSALS