10860 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 5 

RIN 2900–AL84 

Special and Ancillary Benefits for 

Veterans, 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 regulations 

concerning special and ancillary 

benefits for veterans, dependents, and 

survivors. These revisions are proposed 

as part of VA’s rewrite and 

reorganization of all of its compensation 

and pension rules in a logical, claimantfocused, and user-friendly 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 May 8, 2007. 

ADDRESSES: Written comments may be 

submitted through http:// 

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– 

AL84—Special and Ancillary Benefits 

for Veterans, 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: 

William F. Russo, Director of 

Regulations Management (00REG), 

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 (ORPM) 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 

adds subpart H, which includes 

proposed rules regarding the special and 

ancillary benefits for veterans, 

dependents, and survivors. 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 H 

Organization 

Table Comparing Current Part 3 Rules with 

Proposed Part 5 Rules 

Content of Proposed Regulations 

Special Benefits for Veterans, Dependents, 

and Survivors 

5.580 Medal of Honor pension. 

5.581 Awards of VA benefits based on 

special acts or private laws. 

5.582 Naval pension. 

5.583 Special allowance under 38 U.S.C. 

1312. 

5.584 Loan guaranty for surviving spouses; 

certification. 

5.585 Certification for death gratuity. 

5.586 Certification for dependents’ 

educational assistance (DEA). 

5.587 Minimum income annuity and 

gratuitous annuity. 

5.588 Special allowance payable under 

section 156 of Public Law 97–377. 

5.589 Monetary allowance for Vietnam 

veterans’ children born with spina 

bifida. 

5.590 Monetary allowance for female 

Vietnam veterans’ children with certain 

birth defects. 

5.591 Effective dates of awards for certain 

disabled children of Vietnam veterans. 

Ancillary Benefits for Certain ServiceConnected Veterans and Certain Members of 

the Armed Forces Serving on Active Duty 

5.603 Financial assistance to purchase a 

vehicle and adaptive equipment. 

5.606 Clothing allowance. 

Endnote Regarding Amendatory Language 

Paperwork Reduction Act 

Regulatory Flexibility Act 

Executive Order 12866 

Unfunded Mandates 

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, delegations of authority, 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, 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 of these three separate NPRMs, 

concerning VA’s duties and the rights 

and responsibilities of claimants and 

beneficiaries, was published as 

proposed on May 10, 2005. See 70 FR 

24680. 

‘‘Subpart D—Dependents or Survivors 

of Veterans’’ would inform readers how 

VA determines whether an individual is 

a dependent or a survivor of a veteran. 

It would also provide the evidence 

requirements for these determinations. 

This subpart was published as proposed 

on September 20, 2006. See 71 FR 

55052. 

‘‘Subpart E—Claims for Service 

Connection and Disability 

Compensation’’ would define serviceconnected disability compensation, 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10861 

including direct and secondary service 

connection. This subpart would inform 

readers how VA determines entitlement 

to service connection. 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 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, and 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. This subpart is the subject of 

this document. 

‘‘Subpart I—Benefits for Certain 

Filipino Veterans and Survivors’’ would 

pertain to the various benefits available 

to Filipino veterans and their survivors. 

This subpart was published as proposed 

on June 30, 2006. See 71 FR 37790. 

‘‘Subpart J—Burial Benefits’’ would 

pertain to burial allowances. 

‘‘Subpart K—Matters Affecting the 

Receipt of Benefits’’ would contain 

those 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 31056. 

‘‘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 or 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 H 

Organization 

This NPRM pertains to the VA 

adjudication rules that concern special 

and ancillary benefits for veterans, 

dependents, and survivors. The 

document addresses the rules that 

govern special benefits, such as § 3.802 

related to Medal of Honor, § 3.801 

related to special acts of Congress, and 

§ 3.814 related to children with spina 

bifida. We will also address the rules 

that govern ancillary benefits for which 

veterans with certain service-connected 

disabilities are eligible. These include 

the current § 3.808 related to 

certification for automobiles or other 

conveyances under 38 U.S.C. 3902; and 

§ 3.810 related to the clothing allowance 

under 38 U.S.C. 1162. While 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. We specifically note in the 

NPRM where the substantive changes 

occur. 

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 

(or ‘‘New’’) 

Special Benefits 

5.580(a)–(b) .............. 3.802(a) 

(c)(1)–(2) ................... 3.802(b). 

5.580(c)(3) ................. 3.802(c). 

5.580(c)(4) ................. 3.27(d). 

5.580(d)–(e) .............. 3.802(b). 

5.581(a)–(b) .............. 3.801(a). 

5.581(c)(1) ................. 3.801(c)(2). 

5.581(c)(2) ................. 3.801(d). 

5.581(d) ..................... 3.801(b). 

5.581(e)(1) ................ 3.801(e). 

5.581(e)(2) ................ New. 

5.581(f) ...................... 3.801(c)(1). 

5.582 ......................... 3.803. 

5.583 ......................... 3.804. 

5.584 ......................... 3.805. 

5.585 ......................... 3.806. 

5.586(a) ..................... New. 

5.586(b) ..................... 3.807(c). 

5.586(c) ..................... 3.807(c). 

5.586(d) ..................... 3.807(d). 

5.587 ......................... 3.811. 

5.588 ......................... 3.812. 

5.589 ......................... 3.814. 

5.590 ......................... 3.815. 

5.591 (introductory 

paragraph).

New. 


jlentini on PROD1PC65 with PROPOSAL3
10862 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

Proposed part 5 section or paragraph 

Based in whole or in 

part on 38 CFR part 3 

section or paragraph 

(or ‘‘New’’) 

5.591(a) (introductory 

paragraph).

3.814(e) (introductory 

paragraph), 3.815(i) 

(introductory paragraph). 

5.591(a)(1) ................ 3.403(b). 

5.591(a)(2) ................ 3.403(c), 3.815(i) (introductory paragraph). 

5.591(a)(3) ................ 3.403(b), (c). 

3.815(i). 

5.591(a)(4) ................ 3.400(g). 

3.814(e)(2), 

3.815(i)(2). 

5.591(a)(5) ................ 3.400(o)(2). 

3.814(e)(1). 

3.815(i)(1). 

5.591(a)(6) ................ 3.114(a), 3.815(i) (introductory paragraph), 3.403(c). 

5.591(b) (introductory 

paragraph).

3.500(a), 3.814(f), 

3.815(j). 

5.591(b)(1) ................ 3.500(b)(1), 

3.814(f)(1), 

3.815(j)(1). 

5.591(b)(2) ................ 3.500(b)(2), 

3.814(f)(2), 

3.815(j)(2). 

5.591(b)(3) ................ 3.503(b). 

5.591(b)(4) ................ 3.814(f) (introductory 

paragraph); 3.815(j) 

(introductory paragraph). 

Ancillary Benefits 

5.603(a) ..................... New. 

5.603(b)(1) ................ 3.808(e). 

5.603(b)(2) ................ New. 

5.603(c)(1) ................. 3.808(a), (b), and 

New. 

5.603(c)(2) ................. 3.808(b). 

5.603(c)(3) ................. 3.808(c). 

5.603(d)(1) ................ New. 

5.603(d)(2) ................ 3.808(d) and 17.158. 

5.603(e) ..................... 3.808(c) and New. 

5.603(f) ...................... New and 17.158. 

5.606(a) ..................... New. 

5.606(b)(1) ................ 3.810(a) (introductory 

paragraph). 

5.606(b)(2) (introductory paragraph).3.810(a)(1). 

5.606(b)(2)(i) ............. 3.810(a)(1), (a)(2). 

5.606(b)(2)(ii) ............ 3.810(a)(2). 

5.606(b)(3) ................ 3.810(a) (introductory 

paragraph). 

5.606(c) ..................... 3.810(a)(1), (a)(2) 

and New. 

5.606(d) ..................... 3.810(b). 

5.606(e)(1) ................ 3.810(c)(1). 

5.606(e)(2) ................ 3.810(c)(2). 

5.606(f) ...................... New. 

5.606(g) ..................... New. 

5.606(h) ..................... 3.810(d). 

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 contained in these 

proposed regulations appear in subparts 

of part 5 that will be published for 

public comment at a later time. 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 carried forward to part 5. 

Such provisions are discussed 

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 Rules 

Special Benefits for Veterans, 

Dependents, and Survivors 

Section 5.580 Medal of Honor Pension 

Current § 3.802 and the authorizing 

statutes, 38 U.S.C. 1560(c), 1561(c), and 

1562, use the phrase ‘‘special pension’’

to reference benefits payable under 

those provisions to Medal of Honor 

recipients. In order to make this 

regulation more specific, however, VA 

proposes to use the phrase ‘‘Medal of 

Honor pension’’ when referring to 

benefits paid under proposed § 5.580. 

Proposed § 5.580 restates in plain 

language current § 3.802, regarding 

allocation of responsibilities between 

the service departments and VA with 

regard to Medal of Honor pension. 

Current § 3.802(a) consists of two 

sentences. The first sentence briefly 

explains that the Secretaries of the 

Armed Forces and of the Department of 

Transportation are responsible for 

determining whether an applicant has 

been placed on the Medal of Honor Roll 

and for delivering to VA a certified copy 

of the certificate noting that the 

applicant has been placed on the Medal 

of Honor Roll and has a right to the 

Medal of Honor pension. The second 

sentence states: ‘‘The special pension 

will be authorized on the basis of such 

certification.’’ The current regulation 

does not clearly indicate that VA is 

authorized to pay the pension to a 

person placed on the Medal of Honor 

Roll. 

We propose to divide current 

§ 3.802(a) into two paragraphs. Proposed 

§ 5.580(a) explains that the service 

departments are responsible for 

determining the eligibility of an 

applicant to be entered on the Medal of 

Honor Roll, a determination in which 

VA has no role. We also propose in 

§ 5.580 to refer to the Department of 

Homeland Security instead of the 

Department of Transportation. This 

change is needed because the United 

States Coast Guard now falls under the 

jurisdiction of the Department of 

Homeland Security. Homeland Security 

Act of 2002, Public Law 107–296, 

§ 888(b), 116 Stat. 2249. Proposed 

§ 5.580(b) clarifies that it is the 

responsibility of VA to award the Medal 

of Honor pension after it receives a 

certified copy of the certificate. The 

authorities for proposed § 5.580(a) and 

(b) are 38 U.S.C. 1560 and 38 U.S.C. 

1561. 

Proposed § 5.580(c) describes how VA 

calculates the amount and effective date 

of the Medal of Honor pension award 

and the retroactive lump sum payment 

associated with the pension award. 

Current § 3.802(b) provides, in part: ‘‘An 

award of special pension at the monthly 

rate specified in 38 U.S.C. 1562 will be 

made as of the date of filing of the 

application [for placement on the Medal 

of Honor Roll] with the Secretary 

concerned.’’ This sentence is split into 

proposed § 5.580(c)(1) and (c)(2) and 

restated in plain language. 

Proposed § 5.580(c)(3) is a restatement 

in plain language of current § 3.802(c), 

with the exception of the last sentence 

of § 3.802(c). The last sentence states 

‘‘VA will not make a retroactive lump 

sum payment under this section before 

October 1, 2003.’’ We propose not to 

include this sentence in § 5.580(c) 

because, due to the passage of time, it 

no longer serves any useful purpose. 

In keeping with our objective to 

consolidate material concerning the 

same benefit, we propose to repeat the 

content of current § 3.27(d) relating to 

automatic adjustments of Medal of 

Honor pension in proposed § 5.580(c)(4) 

without substantive change. We propose 

to title § 5.580(c)(4) ‘‘Automatic annual 

adjustment.’’

Proposed § 5.580(d) is based, in part, 

on current § 3.802(b). The first sentence 

of proposed § 5.580(d) is derived from 

the current rule. The second sentence of 

proposed § 5.580(d) restates 38 U.S.C. 

1562(c): ‘‘Pensions payable under this 

section are not subject to any 

attachment, execution, levy, tax lien, or 

detention under any process whatever.’’

We propose to add this statement to the 

regulation in order to emphasize the 

protections afforded the Medal of Honor 

pension. 

Proposed § 5.580(e) restates the last 

sentence of current § 3.802(b) which 

explains that a veteran is entitled to 

only one Medal of Honor pension even 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10863 

if the veteran is awarded more than one 

Medal of Honor. 

Section 5.581 Awards of VA Benefits 

Based on Special Acts or Private Laws 

Proposed § 5.581 restates current 

§ 3.801, governing awards of VA 

benefits based on a special act of 

Congress, and adds language clarifying 

the existing rule. 

Proposed § 5.581(a) restates the 

definition of a ‘‘special act’’ from 

current § 3.801(a), also called a ‘‘private 

law,’’ as an act of Congress that 

authorizes VA to pay benefits to a 

particular person. 

Proposed § 5.581(b) clarifies the rule 

stated in current § 3.801(a) that VA will 

not award benefits based on a special 

act until a claimant-beneficiary has filed 

a formal application. The purpose of 

this provision is to ensure that VA has 

all of the necessary information (such as 

full name, address, military status, etc.), 

and that the information is current and 

accurate, in order to properly identify 

and make payments to the beneficiary. 

Proposed § 5.581(c) restates current 

§ 3.801(c)(2) and (d), with clarification. 

The rule pertains to a special act that 

modifies the dates of a veteran’s service 

or the character of a former 

servicemember’s discharge. We propose 

to restate current § 3.801(c)(2) in plain 

language as § 5.581(c)(1). 

Current § 3.801(d) provides that a 

special act that shows a person 

commenced service in the active 

military service on a particular date and 

was honorably discharged on a 

subsequent date ‘‘is sufficient regardless 

of whether the service department has 

any record of such service.’’ In 

§ 5.581(c)(2), we propose to characterize 

a special act as ‘‘conclusive’’ rather than 

‘‘sufficient’’ proof of the period of 

service described in the special act. For 

VA purposes, Congress’ act on the 

matter is conclusive and no further 

investigation of the veteran’s period of 

service is authorized. 

Proposed § 5.581(d) restates in plain 

language current § 3.801(b). Paragraph 

(d) states that VA will pay the benefit in 

accordance with the rate, effective date, 

and duration prescribed in a special act. 

If the special act does not provide for 

the rate, effective date, or duration of 

payments, VA will set them consistent 

with existing public law. 

Proposed § 5.581(e) describes two 

situations where the rate of pension or 

disability compensation may be 

changed. Proposed paragraph (e)(1), 

based on current § 3.801(e), states that 

the rate of pension may be reduced 

when a payee is hospitalized. Proposed 

paragraph (e)(2) states that the rate of 

pension or disability compensation may 

be reduced when a payee is 

incarcerated. This is a new provision 

based on section 1505 of Title 38, 

United States Code, and 38 CFR 3.666, 

which prohibit the payment of pension 

under private laws administered by VA 

to an individual who is imprisoned for 

more than 60 days in a Federal, State, 

or local penal institution. It is also based 

on section 5313 of Title 38, United 

States Code, and 38 CFR 3.365, which 

prohibit the payment of VA disability 

compensation to an individual who is 

imprisoned for more than 60 days in a 

Federal, State, or local penal institution. 

Although section 5313 and 38 CFR 

3.365 do not specify that they are 

applicable to compensation paid under 

private law, there is no indication that 

they would apply only to compensation 

paid under public laws. 

Proposed paragraph § 5.581(f) is based 

on current § 3.801(c)(1), which states 

that VA will not pay any other pension 

or disability compensation award other 

than the award authorized by the 

special act, unless the payee makes an 

election or unless the special act 

expressly authorizes VA to do so. We 

note that this provision might be 

problematic if it prohibits payment for 

a disability other than the disability for 

which payments are awarded under the 

special act. For example, if a special act 

awarded disability compensation for a 

back injury, VA should not be 

precluded from paying additional 

compensation for a different serviceconnected condition. Therefore, we 

have amended the provision to state that 

if VA is authorized to pay pension or 

disability compensation by a special act, 

it may not pay any other pension or 

disability compensation award to the 

extent that such award would be 

duplicative under section 5304 of Title 

38, United States Code. Thus, the payee 

will be prevented from receiving more 

than one award for the same disability, 

but will not be prevented from receiving 

an award for a different disability or 

manifestation of disability. See Subpart 

L, Payments to Beneficiaries Who Are 

Eligible for More than One Benefit, 

§§ 5.740 through 5.769, which will be 

published in a future NPRM. 

Sections 5.582, Naval Pension, 5.583, 

Special Allowance Under 38 U.S.C. 

1312, and 5.584, Loan Guaranty for 

Surviving Spouses; Certification 

We propose to repeat the content of 

current §§ 3.803 (Naval Pension), 3.804 

(Special allowance under 38 U.S.C. 

1312), and 3.805 (Loan guaranty for 

surviving spouses; certification), in 

§§ 5.582, 5.583, and 5.584, respectively, 

without making any substantive changes 

to the text of the rules. We note that 

these sections do not have internal 

paragraph headings to identify the 

subject matter contained therein. 

Therefore, we propose to insert 

paragraph headings where appropriate 

to aid the reader in locating subject 

matter and to make these regulations 

easier to read. 

Further, in proposed § 5.582, we 

inserted the word ‘‘disability’’ before the 

word ‘‘compensation’’ in each instance 

to be consistent with other regulations 

in this NPRM. For the purpose of clarity 

and to avoid confusion between naval 

pension and VA pension, we propose 

not to use the phrase ‘‘disability 

pension,’’ which appears in current 

§ 3.803(b), in § 5.582. We propose to 

place the word ‘‘VA’’ before the phrase 

‘‘pension or disability compensation’’ in 

order to distinguish the Department of 

Defense programs from the VA 

programs. 

Proposed § 5.582(c) is based on 

current § 3.803(c), which states that new 

awards of naval pension may not be 

made concurrently with VA pension or 

compensation. We note that the 

meaning of ‘‘new’’ is ambiguous. It is 

actually referring to awards of naval 

pension made on or after July 14, 1943. 

See 38 U.S.C. 5304(a)(1). To make this 

clear to the reader, we have amended 

this provision to include this date. 

Proposed § 5.583(b)(1) is based on 

current § 3.804(b)(1), which states that 

the special allowance under 38 U.S.C. 

1312 is not payable where the veteran’s 

death resulted from VA hospitalization, 

treatment, examination, or training. The 

purpose of this provision is to exclude 

deaths treated ‘‘as if’’ service connected, 

because such deaths do not meet the 

criteria of 38 U.S.C. 1312(a)(2). Since 

§ 3.804 was promulgated, however, the 

criteria of 38 U.S.C. 1151 (authorizing 

dependency and indemnity 

compensation for deaths treated ‘‘as if’’

service connected because death was 

due to VA treatment or vocational 

rehabilitation) have been expanded, and 

38 U.S.C. 1318 (authorizing dependency 

and indemnity compensation for certain 

deaths treated ‘‘as if’’ service connected 

because the veteran was rated totally 

disabled at time of death) has been 

enacted. Therefore, current § 3.804(b)(1) 

has been rewritten in proposed 

§ 5.583(b)(1) to encompass this 

expanded criteria for deaths that may be 

treated ‘‘as if’’ service connected. We 

have included a reference to proposed 

§ 5.510(b)(2) and (3), which address 

deaths treated ‘‘as if’’ service connected 

under 38 U.S.C. 1151 and 1318. No 

substantive change is intended. 

Proposed § 5.583(e)(1)(ii) is based on 

current § 3.804(e)(1)(ii), which states 

that the special allowance is payable for 


jlentini on PROD1PC65 with PROPOSAL3
10864 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

death occurring as the result of a disease 

or injury which was incurred or 

aggravated in line of duty while on 

active duty or active duty for training, 

or an injury which was incurred or 

aggravated in line of duty while on 

inactive duty training, as a member of 

a uniformed service after September 15, 

1940, if the veteran was discharged or 

released from the period of such duty 

under conditions other than 

dishonorable. We note that this 

provision does not incorporate the 2000 

amendment to the statutory definition of 

‘‘active military, naval, or air service.’’

The amendment included as ‘‘active 

military, naval, or air service’’ any 

period of inactive duty training during 

which the individual concerned was 

disabled or died from an acute 

myocardial infarction, a cardiac arrest, 

or a cerebrovascular accident occurring 

during such training. Rather than amend 

the regulatory provision to include this 

new language, we have decided to 

utilize the corresponding statutory 

language instead, which states simply 

‘‘as the result of a service-connected 

disability incurred after September 15, 

1940.’’ See 38 U.S.C. 1312(a)(2)(B). The 

statutory definition of ‘‘serviceconnected’’ includes the requirement 

that the disability was incurred or 

aggravated in the line of duty in the 

active military, naval, or air service. See 

38 U.S.C. 101(16). By using the statutory 

language in the regulation, it will not be 

necessary to amend the regulation every 

time there is an amendment to the 

statutory definition of ‘‘active military, 

naval, or air service.’’ No substantive 

change to the regulatory provision is 

intended. The requirement that the 

veteran was discharged or released 

under conditions other than 

dishonorable, currently found in 

§ 3.804(e)(1)(ii), is contained in 

proposed § 5.583(e)(2). 

In proposed § 5.583(e)(2)(ii), the 

counterpart to current § 3.804(e)(2)(ii), 

we have replaced the reference to 

current § 3.1(m) with proposed § 5.660, 

which was published in Subpart K on 

May 31, 2006. See 71 FR 31056. Current 

§ 3.804(e)(2)(ii) also includes a reference 

to the § 3.300 series. Therefore, we have 

included references to any published 

proposed Part 5 counterparts to 

regulations in the current § 3.300 series. 

These include §§ 5.661 and 5.662, 

which are the Part 5 counterparts to 

§§ 3.301 and 3.302. These were 

published in Subpart K on May 31, 

2006. These also include proposed 

§§ 5.260 through 5.269, which are the 

Part 5 counterparts to §§ 3.307 through 

3.309, 3.311, 3.316 and 317. These were 

published in Subpart E on July 27, 2004. 

See 69 FR 44614. We have retained the 

reference to the current § 3.300 series, 

because the remaining regulations in 

that series have not yet been published 

in a Part 5 NPRM. 

Section 5.585 Certification for Death 

Gratuity 

We propose to reword the text of 

current § 3.806 for the sake of clarity. 

Current paragraph (a) refers to situations 

where VA makes a certification based 

on a claim filed with it, and current 

paragraph (b) refers to situations where 

VA makes a certification at the request 

of the Secretary concerned. As VA must 

go through the same determination 

criteria in either situation, we propose 

to combine paragraphs (a) and (b), as 

there is no need for them to be separate. 

Current paragraph (c) (which is 

proposed paragraph (b)) has also been 

slightly reorganized. 

Section 5.586 Certification for 

Dependents’ Educational Assistance 

(DEA) 

Proposed § 5.586 is based on current 

§ 3.807 relating to certification for DEA. 

We note that the current provisions of 

§ 3.807(a) and (b) are redundant of 

provisions already contained in 

§ 21.3021. The provisions of § 3.807(a) 

appear in § 21.3021(a). The provisions 

of § 3.807(b) appear in § 21.3021(b), 

with the exception of the sentence 

stating that service-connected disability 

or death must have been the result of 

active military, naval, or air service on 

or after April 21, 1898. (Pub. L. 8–358). 

However, due to the passage of time, 

this date is no longer necessary and no 

longer needs to be included in this 

regulation. Further, the requirement that 

the service-connected disability or death 

must have been the result of active 

military, naval, or air service is 

necessarily implied in the eligibility 

requirements of § 21.3021(a), that the 

veteran has or had a service-connected 

disability. A service-connected 

disability or death is, by statutory 

definition, the result of active military, 

naval, or air service. See 38 U.S.C. 

101(16). 

Instead of repeating the same criteria 

already contained in § 21.3021, we 

propose to simply refer the reader to 

§ 21.3021 for the eligibility criteria. This 

will prevent possibly conflicting 

substantive provisions, and will prevent 

the necessity of amending two 

regulations for the same provision. We 

have also added a brief description of 

DEA. 

Proposed § 5.586(b) is based on the 

second sentence of § 3.807(c), which 

indicates that the standards and criteria 

for determining service connection, 

either direct or presumptive, are those 

applicable to the period of service 

during which the disability was 

incurred or aggravated. 

Proposed § 5.586(c)(1) is based on the 

first sentence of § 3.807(c), which states 

that a disability treated as if service 

connected under § 3.383(a) (paired 

organs and extremities) is included for 

purposes of determining eligibility for 

DEA. Proposed § 5.586(c)(2) is based on 

the third sentence of § 3.807(c), which 

states that a disability treated as if 

service connected under §§ 3.358, 3.361, 

or 3.800 (disability or death due to 

hospitalization or vocational 

rehabilitation) is not included for 

purposes of determining eligibility for 

DEA. 

Proposed § 5.586(d) is based on 

current § 3.807(d), containing the 

definitions of child, spouse, and 

surviving spouse for purposes of 

determining eligibility for DEA. 

Paragraph (d)(1), pertaining to the 

definition of ‘‘child,’’ remains 

essentially unchanged, since the 

definition is particular to eligibility for 

DEA. In paragraph (d)(2), we propose to 

add that a spouse means a person of the 

opposite sex. Currently, (d)(2) merely 

refers the reader to the appropriate 

regulation, § 3.50 (proposed § 5.190), for 

that definition. The reader is still 

referred to the appropriate regulation 

(old § 3.1(j); proposed § 5.190) for the 

requirements of a valid marriage. 

Paragraph (d)(3) is reworded but 

contains no substantive change. 

Sections 5.587, Minimum Income 

Annuity and Gratuitous Annuity, and 

5.588, Special Allowance Payable Under 

Section 156 of Public Law 97–377 

We propose to repeat the content of 

current §§ 3.811 and 3.812 in §§ 5.587 

and 5.588 without making any 

substantive changes to the text of these 

rules. We note that current § 3.811 is 

without internal paragraph headings in 

certain places to properly identify the 

subject matter. Therefore, we propose to 

insert paragraph headings in proposed 

§ 5.587(b)(2)–(d) as appropriate 

guideposts to aid the reader in locating 

subject matter and to make the 

regulation easier to read. For the 

purpose of consistency in usage 

between the various NPRMs, we 

propose to substitute the terms 

‘‘discontinue’’ and ‘‘discontinuance’’ in 

place of ‘‘terminate’’ and ‘‘termination’’

in §§ 5.587(e) and 5.588. 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10865 

Sections 5.589, Monetary Allowance for 

Vietnam Veterans’ Children Born With 

Spina Bifida, and 5.590, Monetary 

Allowance for Female Vietnam 

Veterans’ Children With Certain Birth 

Defects 

We propose to revise the titles of 

current §§ 3.814 and 3.815, respectively. 

We propose to revise the title of current 

§ 3.814 (proposed § 5.589) to read, 

‘‘Monetary allowance for Vietnam 

veterans’ children born with spina 

bifida.’’ We believe that this title more 

accurately and completely represents 

the content of the rule. For the same 

reason, we propose to amend the title of 

current § 3.815 (proposed § 5.590), to 

read, ‘‘Monetary allowance for female 

Vietnam veterans’ children with certain 

birth defects.’’ The proposed titles make 

the regulations easier to locate and 

identify in part 5. 

We note that the second sentence of 

§ 3.814(a), which indicates that a 

recipient of a monetary allowance under 

chapter 18 is not prevented from 

receiving other VA benefits, is 

substantively the same provision as 

found in § 3.815(b), which uses slightly 

different language. We think the 

provisions in each regulation should use 

the same language, however, because 

they are both based on the same statute, 

38 U.S.C. 1823. Therefore, in proposed 

§ 5.589, we have added paragraph (b), 

which is identical to the paragraph 

found in current § 3.185(b) and 

proposed § 5.590(b). For this reason, the 

second sentence of § 3.814(a) is not 

carried over to proposed § 5.589. 

Current §§ 3.814 and 3.815 use the 

phrase ‘‘active military, naval, or air 

service’’ to refer to qualifying service for 

benefits under those regulations. VA has 

previously proposed, with regard to the 

regulations relating to service 

requirements for veterans, to use the 

term ‘‘active military service’’ in lieu of 

the longer term ‘‘active military, naval, 

or air service’’ in 38 U.S.C. 101(24) and 

current part 3. 69 FR 4820, 4822 (2004). 

In order to maintain consistency, we 

propose to use the same phrase in these 

regulations pertaining to special and 

ancillary benefits. Note that, as an 

equivalent to the longer ‘‘active military, 

naval, or air service,’’ ‘‘active military 

service’’ is a broader term than ‘‘active 

duty.’’ Compare 38 U.S.C. 101(21) with 

38 U.S.C. 101(24). 

Neither the authorizing statutes nor 

the current regulations concerning these 

monetary allowances define ‘‘service in 

the Republic of Vietnam’’. To promote 

consistency among VA adjudications 

and because we believe it reflects 

Congressional intent in enacting 

Chapter 18, we propose to cross 

reference our proposed definition of the 

phrase as it applies to veterans seeking 

a presumption of exposure to 

herbicides, contained in § 5.262(a)(1). 

See 69 FR 44614, July 27, 2004. 

We propose to move the effective date 

provisions of these rules, §§ 3.814(e) 

and (f) and 3.815(i) and (j), to a new 

regulation, § 5.591. 

Section 5.591 Effective Dates of 

Awards for Certain Disabled Children of 

Vietnam Veterans 

Pursuant to 38 U.S.C. 1805(a), VA is 

required to pay ‘‘a monthly allowance 

* * * to any child of a Vietnam veteran 

for any disability resulting from spina 

bifida suffered by such child.’’ Current 

§§ 3.403(b) and 3.814 implement 38 

U.S.C. 1805. Similarly, VA is required 

by 38 U.S.C. 1815(a) to pay ‘‘a monthly 

allowance to any eligible child for any 

disability resulting from the covered 

birth defects of that child.’’ The term 

‘‘eligible child’’ is defined in 38 U.S.C. 

1811 as a child of a ‘‘woman Vietnam 

veteran’’ who ‘‘was born with one or 

more covered birth defects.’’ Current 

§§ 3.403(c) and 3.815 implement 38 

U.S.C. 1815. 

The effective date of awards (and 

discontinuances or reductions of 

awards) of the monthly allowances 

described above are governed by 38 

U.S.C. 1832, which incorporates the 

provisions of 38 U.S.C. 5110(a), (b)(2), 

(g), and (i); and 5112(a) and (b)(1), (6), 

(9), and (10). Currently, the effective 

date rules that implement these 

statutory provisions are found in several 

part 3 regulations. The effective date 

rules for awards based on spina bifida 

under current § 3.814 appear in current 

§§ 3.814(e) and (f), 3.403(b), and 

3.503(b). The effective date rules for 

awards based on birth defects under 

current § 3.815 appear in current 

§§ 3.815(i) and (j), 3.403(c), and 

3.503(b). Much of the language in these 

rules is repetitive and can be simplified. 

We propose to reduce the repetition and 

increase the clarity in these rules by 

consolidating the effective date 

provisions located in current §§ 3.814 

and 3.815 with the provisions located in 

current §§ 3.403 and 3.503, resulting in 

one comprehensive rule. We propose 

§ 5.591 as that new comprehensive rule. 

The introductory paragraph of 

proposed § 5.591 outlines the scope of 

the proposed rule. Proposed § 5.591(a) 

provides the general rule for 

determining the effective date of an 

award for the monetary allowances 

governed by the proposed rule. It 

restates content from current §§ 3.403(b) 

and (c), 3.814(e), and 3.815(i), all of 

which restate the general rule 

articulated in 38 U.S.C. 5110(a). The 

general effective date statute, section 

5110(a), is applicable to monthly 

allowances set forth in current §§ 3.814 

and 3.815, pursuant to 38 U.S.C. 

1832(b)(2). 

Proposed § 5.591(a)(1) and (a)(2) each 

limit the effective date of a monetary 

allowance to no earlier than the 

effective dates of 38 U.S.C. 1805 and 

1815. This limitation is required by 38 

U.S.C. 5110(g), which states that the 

effective date of an award or increase in 

benefits pursuant to an Act or 

administrative issue ‘‘shall not be earlier 

than the effective date of the Act or 

administrative issue.’’ Subsection (g) of 

section 5110 is made applicable to these 

monetary awards by 38 U.S.C. 

1832(b)(2). 

Proposed § 5.591(a)(3) restates 

material currently found in § 3.403(b) 

and (c) and § 3.815(i), which is that the 

effective date of a monetary allowance 

will be the child’s date of birth if the 

claim is received within a year of the 

birth date. 

Proposed § 5.591(a)(4) states that VA 

will apply the rule in § 3.400(g), which 

governs effective dates in cases where 

entitlement is established because of the 

correction of military records. This rule 

is applicable under 38 U.S.C. 1832(b)(2) 

and 5110(i). Currently, the rule is 

restated in §§ 3.814(e)(2) and 3.815(i)(2). 

We propose to simply refer the reader to 

the actual rule, § 3.400(g), instead of 

restating it. 

Proposed § 5.591(a)(5) states that in a 

claim for increase of a monetary 

allowance, VA will apply the rule in 

§ 3.400(o)(2), pertaining to the effective 

date of an increase of compensation due 

to an increase in disability. This rule is 

applicable pursuant to U.S.C. 5110(b)(2) 

and 1832(b)(2). Currently, §§ 3.814(e)(1) 

and 3.815(i)(1) restate the rule. We 

propose to simply refer the reader to the 

actual rule, § 3.400(o)(2), instead of 

restating it. 

Proposed § 5.591(a)(6) states that VA 

will apply the rule in § 3.114(a), 

pertaining to a change of law or VA 

issue. Proposed § 5.591(a)(6) 

incorporates the reference to § 3.114(a) 

which appears in current §§ 3.403(c) 

and 3.815(i). The statutory authority for 

current § 3.114(a) is 38 U.S.C. 5110(g) 

and 1832(b)(2). 

Proposed § 5.591(b) governs 

reductions and discontinuances of the 

monetary allowances. Pursuant to 38 

U.S.C. 1832, the provisions of 38 U.S.C. 

5112(a) and 5112(b)(1), (6), (9), and (10), 

governing effectives dates of reductions 

and discontinuances, are applicable. 

Currently, §§ 3.814(f) and 3.815(j) 

restate 38 U.S.C. 5112(a), which 

provides that the effective date of a 

reduction or discontinuance of certain 


jlentini on PROD1PC65 with PROPOSAL3
10866 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

awards will be fixed according to the 

facts found, except as otherwise 

provided. This is implemented by 

current § 3.500(a). We have included a 

reference to § 3.500(a) in proposed 

§ 5.591(b). 

Proposed § 5.591(b)(1) and (b)(2) 

applies the rules regarding the reduction 

or discontinuance of erroneous awards 

based on beneficiary or administrative 

error, located in current § 3.500(b)(1) 

and (2). Currently, paragraphs (1) and 

(2) of § 3.814(f) and paragraphs (1) and 

(2) of § 3.815(j) repeat the language in 

paragraphs (1) and (2) of § 3.500(b). We 

propose to simply incorporate those 

rules by reference to reduce 

repetitiveness. 

Proposed § 5.591(b)(3) governs the 

effective date of a discontinuance based 

on the beneficiary’s death, and restates 

current § 3.503(b), which states that the 

last day of the month before the month 

in which a child’s death occurs serves 

as the effective date of discontinuance. 

The statutory authority for this rule is 

38 U.S.C. 5112(b)(1), which is made 

applicable to these benefits through 38 

U.S.C. 1832(b)(4). 

Proposed § 5.591(b)(4) restates the two 

cross references contained in the 

introductory paragraphs of current 

§§ 3.814(f) and 3.815(j). The current 

rules cross-reference current § 3.114(b), 

Discontinuance of Benefits based on a 

Change of Law or VA Issue. 

Ancillary Benefits for Certain ServiceConnected Veterans and Certain 

Members of the Armed Forces Serving 

on Active Duty 

Section 5.603 Financial Assistance To 

Purchase a Vehicle and Adaptive 

Equipment 

Section 3902 of title 38, U.S.C., 

authorizes VA to assist certain veterans 

and servicemembers in acquiring a 

vehicle and adaptive equipment for a 

vehicle. Such assistance is available to 

claimants who have incurred certain 

disabilities as the result of injury 

sustained or disease contracted in or 

aggravated by active military service. 

See 38 U.S.C. 3901(1)(A). VA’s 

implementing regulations for 38 U.S.C. 

3902 are currently codified at § 3.808. It 

is our intent to rewrite the provisions 

currently in § 3.808 in plain language to 

improve readability. As proposed, we 

have changed the title of this section to 

‘‘Financial assistance to purchase a 

vehicle and adaptive equipment’’ to 

better reflect the purpose of the 

regulation. 

Proposed § 5.603(a) simply states in 

plain language the general nature of the 

benefit involved in this section. 

Proposed § 5.603(b) provides 

definitions of applicable terms, namely 

‘‘adaptive equipment’’ and ‘‘vehicle.’’

No substantive change from current 

§ 3.808 has been made to either term. 

We propose to include in § 5.603(b) the 

types of adaptive equipment to which 

an eligible person may be entitled under 

this section. We propose to use the term 

‘‘vehicle’’ in lieu of ‘‘automobile or 

other conveyance’’ to make the 

regulation easier to read. 

Proposed § 5.603(c) identifies the 

criteria that a claimant must satisfy to 

obtain a certification of eligibility for the 

purchase of a vehicle and adaptive 

equipment. This is a plain language 

rewrite of current § 3.808 criteria, and 

there is no change to the substantive 

provisions. 

Proposed § 5.603(d), which is based 

on 38 CFR 17.158 and current VA 

practice, specifies certain limitations for 

eligibility for financial assistance to 

purchase a vehicle and/or adaptive 

equipment. It also states the limitations 

on how often an eligible person may 

take advantage of these benefits for the 

purchase of a vehicle and adaptive 

equipment, and states that payments 

may not be made for the repair, 

maintenance, or replacement of a 

vehicle, but payments may be made for 

the repair, replacement, or reinstallation 

of adaptive equipment. 

We note that current § 3.808(d), which 

is entitled ‘‘additional eligibility criteria 

for adaptive equipment,’’ states that 

claimants for adaptive equipment must 

also satisfy the additional eligibility 

criteria of §§ 17.156, 17.157, and 17.158 

of this chapter. We have not included 

this provision in proposed § 5.603 

because the part 17 provisions do not 

state additional ‘‘eligibility criteria.’’

Rather, they state additional details 

regarding the assistance VA may 

provide. However, we have added a 

reference to those part 17 provisions in 

proposed § 5.603(d)(2). 

Proposed § 5.603(e) is based partly on 

current § 3.808(c). We have also added 

a few details regarding the procedure of 

certification. These provisions reflect 

current VA practice; no substantive 

changes are intended. 

Proposed § 5.603(f) is based on 38 

CFR 17.158 and current VA practice; no 

substantive change is intended. 

Section 5.606 Clothing Allowance 

Proposed § 5.606 is derived from 

current § 3.810 but is written in plain 

language to clarify certain provisions 

and to improve readability. We have 

reorganized the information in a logical 

format, addressing basic eligibility and 

applications, examinations, payments, 

and reduction for incarceration. We 

have also included rules for Filipino 

veterans and veterans living abroad to 

ensure that all affected persons have the 

information necessary to file an annual 

clothing allowance claim. 

Proposed § 5.606(a) states generally 

the nature of the regulation. It does not 

add any substantive material to the 

regulation, but is merely intended to 

familiarize the reader with the nature of 

the regulation. 

Proposed § 5.606(b), based on current 

§ 3.810(a), states the eligibility 

requirements for receiving benefits 

under this section. It is reorganized and 

rewritten in plain English. No 

substantive change from current 

§ 3.810(a) is intended, except for the 

reference to § 3.326(c). The reference to 

§ 3.326(c) is in current § 3.810(a)(1), 

which states that one of the eligibility 

criteria is a VA examination or hospital 

or examination report from a facility 

specified in § 3.326(c) which discloses 

that the veteran wears or uses certain 

prosthetic or orthopedic appliances 

(including a wheelchair) which tend to 

wear or tear clothing because of such 

disability and such disability is the loss 

or loss of use of a hand or foot 

compensable at a rate specified in 

§ 3.350(a), (b), (c), (d), or (f). The 

reference to § 3.326(c) is not completely 

correct. Current § 3.326(c) states: 

‘‘Provided that it is otherwise adequate 

for rating purposes, a statement from a 

private physician may be accepted for 

rating a claim without further 

examination.’’ This provision does not 

refer to a ‘‘facility,’’ as current 

§ 3.810(a)(1) might suggest. Rather, 

current § 3.326(b) is the appropriate 

provision regarding reports from private 

facilities. Current § 3.326(b) states in 

pertinent part: ‘‘Provided that it is 

otherwise adequate for rating purposes, 

any hospital report, or any examination 

report, from any government or private 

institution may be accepted for rating a 

claim without further examination.’’

Both paragraph (b) and paragraph (c) of 

current § 3.326 are appropriate 

references, and therefore we have 

adjusted the reference to include both 

(b) and (c) of current § 3.326, which 

have been published as proposed 

§ 5.91(a). See 70 FR 24680. 

We note that we have not carried 

forward the provision in current 

§ 3.810(a)(2) which states that VA’s 

Chief Medical Director or designee will 

make the certification of eligibility. This 

provision addresses an internal 

administrative procedure within VA 

and does not need to be included in the 

regulation. Instead we have stated the 

provision in more general terms by 

indicating that VA will make the 

determination whether the serviceVerDate Aug<31>2005 19:19 Mar 08, 2007 Jkt 211001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\09MRP3.SGM 09MRP3

jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10867 

connected disability tends to wear out 

or tear the veteran’s clothing or whether 

the prescribed medication causes 

irreparable damage to the veteran’s 

outergarments. This is consistent with 

the language of the authorizing statute, 

38 U.S.C. 1162, which indicates that 

such determinations are made by the 

Secretary. We have used the term ‘‘VA’’

instead of ‘‘Secretary,’’ which is 

consistent with the meaning of the 

statute. It is understood that an 

employee of VA will make the actual 

determination on behalf of the 

Secretary, and therefore ‘‘VA’’ is a more 

appropriate term. Using more general 

language (‘‘VA’’ instead of ‘‘Chief 

Medical Director’’) in the proposed 

regulation removes the necessity of 

amending the regulation every time 

there is a change in VA procedure. 

Proposed § 5.606(c) is a new provision 

based on current VA practice. It 

describes the criteria required for 

continuing entitlement to the clothing 

allowance. If a veteran has continuing 

entitlement to the clothing allowance, 

the veteran is not required to reapply for 

the clothing allowance each year. 

Proposed § 5.606(d), regarding the 

annual payment period and anniversary 

date, is based on current § 3.810(b). The 

first sentence of current § 3.810(b) states 

that effective August 1, 1972, the initial 

lump sum clothing allowance is due 

and payable for veterans meeting the 

eligibility requirements of paragraph (a) 

of this section as of that date. The 

August 1, 1972, date is the date that the 

clothing allowance was first effective. 

The first sentence of current § 3.810(b) 

means that if a veteran met the 

eligibility requirements for the clothing 

allowance as of August 1, 1972, the 

clothing allowance was due and payable 

as of August 1, 1972. Due to the passage 

of time, this date and this sentence are 

no longer necessary, and they have not 

been carried forward to proposed 

§ 5.606. 

The second sentence of current 

§ 3.810(b) states that subsequent annual 

payments for those meeting the 

eligibility requirements of paragraph (a) 

of this section will become due on the 

anniversary date thereafter, both as to 

initial claims and recurring payments 

under previously established 

entitlement. The phrase ‘‘subsequent 

annual payments’’ means payments 

after August 1, 1972. The ‘‘anniversary 

date’’ means August 1 of each year after 

1972. The sentence merely establishes 

that the clothing allowance is due to 

eligible veterans on August 1 of each 

year. The August 1 date applies to 

initial claims for the clothing allowance, 

and for automatically recurring 

payments. 

Proposed § 5.606(d) is a plain 

language rewrite of current § 3.810(b). 

We believe that the proposed language 

is clearer than the current version. In 

essence, current § 3.810(b) relies on a 

reference to the original August 1, 1972, 

effective date of the clothing allowance 

statute in order to explain that the 

clothing allowance is due on August 1 

of each year. A simpler way of saying 

this is to state that the clothing 

allowance is paid annually following 

each 12-month period which begins 

August 1 and ends July 31. In addition, 

we have explained that the August 1 

date is referred to as the anniversary 

date. It is helpful to keep the 

‘‘anniversary date’’ terminology in order 

to easily explain the effective date 

provisions in proposed § 5.606(e). We 

have also added a definition of ‘‘initial 

anniversary date,’’ which is a phrase 

used in proposed § 5.606(e). No 

substantive change from the current 

regulation is intended. 

Proposed § 5.606(e), regarding the 

time for filing a claim for the clothing 

allowance, is based on current 

§ 3.810(c). It is rewritten in plain 

English. In addition, examples have 

been added in order to more clearly 

illustrate the meaning of these 

provisions. No substantive change from 

the current regulation is intended. 

Proposed § 5.606(f) and (g) discuss 

clothing allowance claims for Filipino 

veterans and veterans living abroad. 

These two rules reflect current VA 

practice. The appropriate VA medical 

center prosthetic and sensory aids 

service will process the annual clothing 

allowance payment for those claims 

under the jurisdiction of the VA medical 

center assigned the geographical area 

where the veteran maintains a 

permanent address. Claims filed by 

Filipino veterans not permanently 

residing in the U.S. are processed 

locally in Manila, Philippines. Claims 

authorized for veterans of the U.S. Army 

and Old Philippine Scouts are paid in 

dollars. Claims authorized for New 

Philippine Scouts, Commonwealth 

Army of the Philippines, and guerilla 

service, are paid at a rate in Philippine 

pesos equivalent to $.50 for each dollar 

authorized under the law. See § 3.42 

(proposed § 5.613). 

Proposed § 5.606(h) restates current 

§ 3.810(d) pertaining to reduction of the 

amount of the clothing allowance when 

a veteran is incarcerated for a period in 

excess of 60 days and is furnished 

clothing without charge by the penal 

institution. This regulation implements 

38 U.S.C. 5313A. We propose to include 

a notation that the reduction applies to 

incarceration for any reason. We believe 

this brings focus to the controlling issue 

of whether the veteran is being 

furnished clothing without charge 

during incarceration, and not the reason 

for the veteran’s incarceration. The 

statutory language of 38 U.S.C. 5313A 

does not contain a requirement that a 

veteran be convicted of a felony for the 

reduction to occur. Proposed § 5.606(h) 

clarifies that the reduction applies to all 

veterans who are incarcerated for more 

than 60 days and are furnished clothing 

without charge, without regard to the 

nature of the crime for which the 

veteran was convicted. 

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 in 38 CFR 5.603 and 5.606 

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 these 

proposed rules. The information 

collection requirements for §§ 5.603 and 

5.606 are currently approved by the 

Office of Management and Budget 

(OMB) and have been assigned OMB 

control numbers 2900–0067, 2900–0188, 

and 2900–0198. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

these proposed regulatory amendments 

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. Although these proposed 

amendments affect some small entities, 

specifically auto dealerships, the 

proposed amendments do not 

substantively change the current 

regulation (38 CFR 3.808) concerning 

auto dealerships. The current regulation 

does not have a significant economic 

impact on auto dealerships. Therefore, 

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

proposed amendment are 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 


jlentini on PROD1PC65 with PROPOSAL3
10868 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(OMB) unless OMB waives such review, 

as any regulatory action that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) Create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

Materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) Raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this proposed rule have 

been examined and it has been 

determined to be a significant regulatory 

action under the Executive Order 

because it is likely to result in a rule that 

may raise novel legal or policy issues. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

requires, at 2 U.S.C. 1532, that agencies 

prepare an assessment of anticipated 

costs and benefits before developing any 

rule that may result in an expenditure 

by State, local, or tribal governments, in 

the aggregate, or by the private sector of 

$100 million or more in any given year. 

This rule would have no such effect on 

State, local, or tribal governments, or the 

private sector. 

Catalog of Federal Domestic Assistance 

Numbers 

The Catalog of Federal Domestic 

Assistance program numbers and title 

for this proposal are 64.100, 

Automobiles and Adaptive Equipment 

for Certain Disabled Veterans and 

Members of the Armed Forces; 64.101, 

Burial Expenses Allowance for 

Veterans; 64.102, Compensation for 

Service-Connected Deaths for Veterans’

Dependents; 64.104, Pension for NonService-Connected Disability for 

Veterans; 64.110, Veterans Dependency 

and Indemnity Compensation for 

Service-Connected Death; 64.115, 

Veterans Information and Assistance; 

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, 

Health care, Pensions, Veterans, 

Vietnam. 

Approved: November 30, 2006. 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

Editorial Note: This document was 

received at the Office of the Federal Register 

on March 5, 2007. 

For the reasons set forth 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 H to read as follows: 

PART 5—COMPENSATION, PENSION, 

BURIAL, AND RELATED BENEFITS 

Subpart H—Special and Ancillary Benefits 

for Veterans, Dependents, and Survivors 

Special Benefits for Veterans, Dependents, 

and Survivors 

Sec. 

5.580 Medal of Honor pension. 

5.581 Awards of VA benefits based on 

special acts or private laws. 

5.582 Naval pension. 

5.583 Special allowance under 38 U.S.C. 

1312. 

5.584 Loan guaranty for surviving spouses; 

certification. 

5.585 Certification for death gratuity. 

5.586 Certification for dependents’

educational assistance (DEA). 

5.587 Minimum income annuity and 

gratuitous annuity. 

5.588 Special allowance payable under 

section 156 of Public Law 97–377. 

5.589 Monetary allowance for Vietnam 

veterans’ children born with spina 

bifida. 

5.590 Monetary allowance for female 

Vietnam veterans’ children with certain 

birth defects. 

5.591 Effective dates of awards for certain 

disabled children of Vietnam veterans. 

5.592–5.599 [Reserved] 

Ancillary Benefits for Certain ServiceConnected Veterans and Certain Members of 

the Armed Forces Serving on Active Duty 

5.600–5.602 [Reserved] 

5.603 Financial assistance to purchase a 

vehicle and adaptive equipment. 

5.604–5.605 [Reserved] 

5.606 Clothing allowance. 

5.607–5.609 [Reserved] 

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

otherwise noted. 

Subpart H—Special and Ancillary 

Benefits for Veterans, Dependents, and 

Survivors 

Special Benefits for Veterans, 

Dependents, and Survivors 

§ 5.580 Medal of Honor pension. 

(a) Placement on the Medal of Honor 

Roll. The Secretaries of the Departments 

of the Army, Navy, Air Force, and 

Homeland Security determine 

entitlement to placement on the Medal 

of Honor Roll and issue certificates 

setting forth the right to receive Medal 

of Honor pension. After a person has 

been placed on the Medal of Honor Roll, 

and if such person has indicated a 

desire to receive the Medal of Honor 

pension, the Secretary concerned will 

provide VA with a certified copy of the 

certificate setting forth such person’s 

right to the Medal of Honor pension. 

(b) Award of Medal of Honor pension 

by VA. Medal of Honor pension will be 

awarded by VA once the certification 

under paragraph (a) of this section is 

provided to VA. 

(c) Amount of the Medal of Honor 

pension, the effective date of the 

pension, and entitlement to a retroactive 

lump-sum payment. VA will pay a 

Medal of Honor pension and a 

retroactive lump-sum payment, as 

follows: 

(1) Effective date. The effective date 

for payment of a Medal of Honor 

pension is the date the service 

department concerned received the 

person’s application for placement on 

the Medal of Honor Roll. 

(2) Monthly rate. VA will pay a Medal 

of Honor pension at the rate specified in 

38 U.S.C. 1562, as adjusted under 

paragraph (c)(4) of this section. 

(3) Retroactive lump-sum payment. 

VA will pay to each person who is 

receiving or who in the future receives 

a Medal of Honor pension, a retroactive 

lump sum payment for the period 

beginning the first day of the month 

after the date of the event for which the 

veteran earned the Medal of Honor, and 

ending on the last day of the month 

preceding the month in which the 

pension commenced under paragraph 

(c)(1) of this section. The lump sum 

payment will be based on the monthly 

Medal of Honor pension rates in effect 

during the period for which the lump 

sum payment is made. 

(4) Automatic annual adjustment. VA 

will, effective December 1 of each year, 

increase the monthly Medal of Honor 

pension by the same percentage by 

which benefit amounts payable under 

Title II of the Social Security Act are 

increased effective December 1 of that 

year. 

(d) Medal of Honor pension exempt 

from offset, attachment, or other legal 

process. The Medal of Honor pension is 

paid in addition to all other payments 

under laws of the United States. It is not 

subject to any attachment, execution, 

levy, tax lien, or detention under any 

process whatever. 

(e) Only one Medal of Honor pension 

is allowed. VA will pay a person only 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10869 

one Medal of Honor pension under this 

section, even if the person is awarded 

more than one Medal of Honor. 

(Authority: 38 U.S.C. 1560, 1561, 1562) 

§ 5.581 Awards of VA benefits based on 

special acts or private laws. 

(a) Special act means an act of 

Congress that authorizes VA to pay 

benefits to a particular person. Special 

acts are also known as private laws. 

(b) Formal application must be filed. 

VA will award benefits based on a 

special act only to an individual who 

files a formal application based on the 

special act, unless the individual: 

(1) Is currently receiving VA benefits; 

or 

(2) Has a pending formal application 

in the form prescribed by VA (a claim 

that has not been granted or finally 

denied by VA). 

(c) Special acts relating to military 

service—(1) Change to character of 

discharge. If a special act changes the 

character of a former servicemember’s 

discharge from military service so as to 

establish the former servicemember’s 

status as a veteran, but the special act 

does not establish the former 

servicemember’s entitlement to VA 

pension or disability compensation, the 

former servicemember will satisfy the 

discharge requirement for purposes of 

establishing status as a veteran and may 

apply for and be awarded VA benefits 

if otherwise eligible. 

(2) Special act as conclusive proof of 

service. For VA purposes, a special act 

that states a veteran served on a 

particular date or dates and was 

discharged under conditions other than 

dishonorable on a particular date is 

conclusive proof of such service. 

(d) Rate, effective date, and duration 

of benefit. (1) VA will apply and will 

not change, except as provided in 

paragraph (e) of this section, the rate, 

effective date, and discontinuance date 

that is specified in a special act. 

(2) When a special act does not 

provide the rate, effective date, or 

discontinuance date, VA will award or 

continue the benefit consistent with 

applicable public laws. 

(e) Changes in rates—(1) 

Hospitalization. VA will reduce pension 

payable under a special act pursuant to 

§ 3.551 of this chapter (reduction of 

payments based on hospitalization), 

unless the special act expressly 

prohibits such reduction. 

(2) Incarceration. VA will reduce 

disability compensation and pension 

payable under a special act pursuant to 

§§ 3.365 and 3.666 of this chapter 

(reduction of payments during 

incarceration), unless the special act 

expressly prohibits such reduction. 

(f) Prohibition against duplicate 

awards. When pension or disability 

compensation is authorized by a special 

act, VA will not pay any other pension 

or disability compensation to the extent 

such awards would be duplicative 

under section 5304 of title 38, United 

States Code, unless the payee makes an 

election (see § 3.700 of this chapter), or 

unless the special act expressly 

authorizes VA to do so. 

(Authority: 38 U.S.C. 501(a), 1505, 5313, 

5503) 

§ 5.582 Naval pension. 

(a) Certification. VA will pay naval 

pension if the Secretary of the Navy 

certifies that the person is entitled to the 

pension. 

(Authority: 10 U.S.C. 6160) 

(b) Concurrent receipt of awards in 

effect prior to July 14, 1943. Awards of 

naval pension in effect prior to July 14, 

1943, or renewed or continued may be 

paid concurrently with VA pension or 

disability compensation; however, naval 

pension allowance under 10 U.S.C. 6160 

may not exceed one-fourth of the rate of 

VA pension or disability compensation 

otherwise payable, exclusive of 

additional allowances for dependents or 

specific disabilities. 

(c) No concurrent receipt of awards 

initially made on or after July 14, 1943. 

Naval pension initially awarded on or 

after July 14, 1943, may not be paid 

concurrently with VA pension or 

disability compensation. 

(Authority: 38 U.S.C. 5304(a)) 

(d) Naval pension not payable as 

accrued benefit. Naval pension 

remaining unpaid at the date of the 

veteran’s death is not payable by VA as 

an accrued benefit. 

(Authority: 10 U.S.C. 1414; 38 U.S.C. 5304) 

§ 5.583 Special allowance under 38 U.S.C. 

1312. 

(a) Allowance payable. The provisions 

of this section are applicable to the 

payment of a special allowance by VA 

to the surviving dependents of a veteran 

who served after September 15, 1940, 

and who died after December 31, 1956, 

as a result of such service and who was 

not a fully and currently insured 

individual under title II of the Social 

Security Act. 

(b) Allowance not payable. The 

special allowance is not payable: 

(1) Where the veteran’s death is not 

service connected but is treated ‘‘as if’’

it were service connected under the 

provisions of this chapter. See 

§ 5.510(b)(2) and (3) of this chapter; 

(2) Where the veteran’s death was due 

to service rendered with the 

Commonwealth Army of the Philippines 

while such forces were in the service of 

the Armed Forces pursuant to the 

military order of the President dated 

July 26, 1941, or was due to service in 

the New Philippine Scouts under 

section 14, Public Law 190, 79th 

Congress. 

(c) Claims for special allowance. A 

claim for dependency and indemnity 

compensation on a form prescribed will 

be accepted as a claim for the special 

allowance where it is determined that 

this benefit is payable or where a 

specific inquiry concerning entitlement 

to the special allowance is received. 

(d) Certification by the Social Security 

Administration. Payment of this 

allowance will be authorized on the 

basis of a certification from the Social 

Security Administration. Award actions 

subsequent to the original award, 

including adjustment and 

discontinuance, will be made in 

accordance with new certifications from 

the Social Security Administration. 

(e) Special allowance payable on 

death. (1) The special allowance will be 

payable only if the death occurred: 

(i) While on active duty, active duty 

for training, or inactive duty training as 

a member of a uniformed service (line 

of duty is not a factor); or 

(ii) As the result of a serviceconnected disability incurred after 

September 15, 1940. 

(2) Where the veteran died after 

separation from service: 

(i) Discharge from service must have 

been under conditions other than 

dishonorable as outlined in § 5.30. 

(ii) Line of duty and service 

connection will be determined as 

outlined in §§ 3.1(k), 3.1(m), §§ 3.300 

through 3.344, §§ 5.260 through 5.269, 

and §§ 5.660 through 5.662. 

(Authority: 38 U.S.C. 1312) 

§ 5.584 Loan guaranty for surviving 

spouses; certification. 

A certification of loan guaranty 

benefits may be extended to surviving 

spouses based on an application filed 

after December 31, 1958, if: 

(a) The veteran served in the Armed 

Forces of the United States (Allied 

Nations are not included) at any time 

after September 15, 1940; and 

(b) The veteran died in service; or 

(c) The veteran died after separation 

from service and such separation was 

under conditions other than 

dishonorable, provided the veteran’s 

death was the result of injury or disease 

incurred in or aggravated by service in 

line of duty rendered after September 

15, 1940, regardless of the date of 

entrance into such service (cases where 

compensation is payable because of 


jlentini on PROD1PC65 with PROPOSAL3
10870 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

death resulting from hospitalization, 

treatment, examination, or training are 

not included); and 

(d) The surviving spouse meets the 

requirements of the term ‘‘surviving 

spouse’’ as outlined in § 5.200(a); and 

(e) The veteran’s surviving spouse is 

unmarried or was remarried after age 57; 

and 

(f) The applicant is not an eligible 

veteran. 

§ 5.585 Certification for death gratuity. 

(a) Certification by VA to the 

Secretary concerned. If VA determines 

either on the basis of a claim for VA 

benefits filed with it or at the request of 

the Secretary concerned, that a death 

occurred under the following 

circumstances, VA will certify that fact 

to the Secretary concerned: 

(1) The veteran died after December 

31, 1956; 

(2) The veteran died during the 120- 

day period that began on the day 

following the day of his or her discharge 

or release from duty as described in 10 

U.S.C. 1476; 

(3) Death resulted from disease or 

injury incurred or aggravated while on 

such duty, or travel to or from such 

duty; and 

(4) The deceased person was 

discharged or released from such service 

under conditions other than 

dishonorable. 

(b) VA law applies. The standards, 

criteria, and procedures for determining 

the incurrence or aggravation of a 

disease or injury under paragraph (a) of 

this section are those applicable under 

disability and death compensation laws 

administered by VA, except that there is 

no requirement under this section that 

any incurrence or aggravation have been 

in the line of duty. 

(Authority: 10 U.S.C. 1476, 38 U.S.C. 1323) 

§ 5.586 Certification for dependents’

educational assistance (DEA). 

(a) Eligibility for DEA. DEA is an 

education benefit which VA is 

authorized to provide for certain classes, 

licenses, or certifications. See § 21.3020 

through 21.3344 of this chapter. In 

addition to paragraphs (b) through (d) of 

this section, the provisions of § 21.3021 

of this chapter will be applied in a 

determination of eligibility for DEA. 

(b) Service connection. The standards 

and criteria for determining service 

connection, either direct or 

presumptive, are those applicable to the 

period of service during which the 

disability was incurred or aggravated 

(38 U.S.C. 3501(a)). 

(c) Disabilities treated as if service 

connected—(1) Paired organs or 

extremities. For purposes of eligibility 

for DEA, a ‘‘service-connected 

disability’’ includes a disability treated 

as if service-connected under the 

provisions of § 3.383(a) of this chapter 

(paired organs and extremities). 

(2) Disability due to hospitalization, 

etc. For purposes of eligibility for DEA, 

a ‘‘service-connected disability’’ does 

not include a disability treated as if 

service connected under §§ 3.358, 3.361, 

or 3.800 of this chapter (disability or 

death due to hospitalization, etc.). 

(d) Relationship—(1) Child. For the 

purposes of this section, the term 

‘‘child’’ means a veteran’s child who 

meets the requirements of § 5.220, 

except as to age and marital status. 

(Authority: 38 U.S.C. 3501(a)(2)) 

(2) Spouse. For VA purposes, a 

‘‘spouse’’ means a person of the 

opposite sex whose marriage to the 

veteran meets the requirements for a 

valid marriage under § 5.191. 

(3) Surviving spouse. For VA 

purposes, a ‘‘surviving spouse’’ is a 

person who meets the requirements of 

§ 5.200. 

(Authority: 1 U.S.C. 7; 38 U.S.C. 101(3), 

103(c)) 

§ 5.587 Minimum income annuity and 

gratuitous annuity. 

(a) Eligibility for minimum income 

annuity. The minimum income annuity 

authorized by Public Law 92–425 as 

amended is payable to a person: 

(1) Whom the Department of Defense 

or the Department of Homeland Security 

has determined meets the eligibility 

criteria of section 4(a) of Public Law 92–

425 as amended other than section 

4(a)(2) and (3); and 

(2) Who is eligible for pension under 

subchapter III of 38 U.S.C. chapter 15, 

or section 306 of the Veterans’ and 

Survivors’ Pension Improvement Act of 

1978; and 

(3) Whose annual income, as 

determined in establishing pension 

eligibility, is less than the maximum 

annual rate of pension in effect under 38 

U.S.C. 1541(b). 

(b) Computation of the minimum 

income annuity payment—(1) Annual 

income. VA will determine a 

beneficiary’s annual income for 

minimum income annuity purposes 

under the provisions of §§ 3.271 and 

3.272 of this chapter for beneficiaries 

receiving Improved Pension, or under 

§§ 5.472 through 5.474 of this part for 

beneficiaries receiving Old Law or 

Section 306 Pensions, except that the 

amount of the minimum income 

annuity will be excluded from the 

calculation. 

(2) Determining rate of annuity for 

persons entitled to Improved Pension. 

VA will determine the minimum 

income annuity payment for 

beneficiaries entitled to Improved 

Pension by subtracting the annual 

income for minimum income annuity 

purposes from the maximum annual 

pension rate under 38 U.S.C. 1541(b). 

(3) Determining rate of annuity for 

persons entitled to Old Law and Section 

306 Pensions. VA will determine the 

minimum income annuity payment for 

beneficiaries receiving Old Law and 

Section 306 Pensions by reducing the 

maximum annual pension rate under 38 

U.S.C. 1541(b) by the amount of the 

Retired Servicemen’s Family Protection 

Plan benefit, if any, that the beneficiary 

receives and subtracting from that 

amount the annual income for 

minimum income annuity purposes. 

(4) Recomputation. VA will 

recompute the monthly minimum 

income annuity payment whenever 

there is a change to the maximum 

annual rate of pension in effect under 38 

U.S.C. 1541(b), and whenever there is a 

change in the beneficiary’s income. 

(c) Exception as to the requirement of 

pension eligibility. An individual 

otherwise eligible for pension under 

subchapter III of 38 U.S.C. chapter 15, 

or section 306 of the Veterans’ and 

Survivors’ Pension Improvement Act of 

1978 shall be considered eligible for 

pension for purposes of determining 

eligibility for the minimum income 

annuity even though as a result of 

adding the amount of the minimum 

income annuity authorized under Public 

Law 92–425 as amended to any other 

countable income, no amount of 

pension is due. 

(d) Concurrent receipt of gratuitous 

annuity under Public Law 100–456. If 

the Department of Defense or the 

Department of Homeland Security 

determines that a minimum income 

annuitant also is entitled to the 

gratuitous annuity authorized by Public 

Law 100–456 as amended, which is 

payable to certain surviving spouses of 

servicemembers who died before 

November 1, 1953, and were entitled to 

retired or retainer pay on the date of 

death, VA will combine the payment of 

the gratuitous annuity with the 

minimum income annuity payment. 

(e) Discontinuance. Other than as 

provided in paragraph (c) of this 

section, if a beneficiary receiving the 

minimum income annuity becomes 

ineligible for pension, VA will 

discontinue the minimum income 

annuity effective the same date. 

(Authority: Sec. 4, Pub. L. 92–425, 86 Stat. 

706, 712, as amended (10 U.S.C. 1448 note)) 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10871 

§ 5.588 Special allowance payable under 

section 156 of Public Law 97–377. 

The provisions of this section apply to 

the payment of a special allowance to 

certain surviving spouses and children 

of individuals who died on active duty 

prior to August 13, 1981, or who died 

as a result of a service-connected 

disability which was incurred or 

aggravated prior to August 13, 1981. 

This special allowance is a replacement 

for certain social security benefits which 

were either reduced or discontinued by 

provisions of the Omnibus Budget 

Reconciliation Act of 1981. 

(a) Eligibility requirements. (1) A 

determination must first be made that 

the person on whose earnings record the 

claim is based either died on active duty 

prior to August 13, 1981, or died as a 

result of a service-connected disability 

which was incurred or aggravated prior 

to August 13, 1981. For purposes of this 

determination, character of discharge is 

not a factor for consideration, and death 

on active duty subsequent to August 12, 

1981, is qualifying provided that the 

death resulted from a service-connected 

disability which was incurred or 

aggravated prior to August 13, 1981. 

(2) Once a favorable determination 

has been made under paragraph (a)(1) of 

this section, determinations as to the 

age, relationship and school attendance 

requirements contained in paragraphs 

(a)(1) and (b)(1) of section 156 of Public 

Law 97–377 will be made. In making 

these eligibility determinations VA shall 

apply the provisions of the Social 

Security Act, and any regulations 

promulgated pursuant thereto, as in 

effect during the claimant’s period of 

eligibility. Unless otherwise provided in 

this section, when issues are raised 

concerning eligibility or entitlement to 

this special allowance which cannot be 

appropriately resolved under the 

provisions of the Social Security Act, or 

the regulations promulgated pursuant 

thereto, the provisions of title 38, Code 

of Federal Regulations, are applicable. 

(b) Computation of payment rate—(1) 

Basic entitlement rate. A basic 

entitlement rate will be computed for 

each eligible claimant in accordance 

with the provisions of subparagraphs 

(a)(2) and (b)(2) of section 156 of Public 

Law 97–377 using data to be provided 

by the Social Security Administration. 

This basic entitlement rate will then be 

used to compute the monthly payment 

rate as described in paragraphs (b)(2) to 

(b)(6) of this section. 

(2) Original or reopened awards to 

surviving spouses. The monthly 

payment rate shall be equal to the basic 

entitlement rate increased by the overall 

average percentage (rounded to the 

nearest tenth of a percent) of each 

legislative increase in dependency and 

indemnity compensation rates under 38 

U.S.C. 1311 which became effective 

concurrently with or subsequent to the 

effective date of the earliest adjustment 

under section 215(i) of the Social 

Security Act that was disregarded in 

computing the basic entitlement rate. 

(3) Original and reopened awards to 

children. The monthly payment rate 

shall be equal to the basic entitlement 

rate increased by the overall average 

percentage (rounded to the nearest tenth 

of a percent) of each legislative increase 

in the rates of educational assistance 

allowance under 38 U.S.C. 3531(b) 

which became effective concurrently 

with or subsequent to the effective date 

of the earliest adjustment under section 

215(i) of the Social Security Act that 

was disregarded in computing the basic 

entitlement rate. 

(4) Subsequent legislative increases in 

rates. The monthly rate of special 

allowance payable to a surviving spouse 

shall be increased by the same overall 

average percentage increase (rounded to 

the nearest tenth of a percent) and on 

the same effective date as any legislative 

increase in the rates payable under 38 

U.S.C. 1311. The monthly rate of special 

allowance payable to a child shall be 

increased by the same overall average 

percentage increase (rounded to the 

nearest tenth of a percent) and on the 

same effective date as any legislative 

increase in the rates payable under 38 

U.S.C. 3531(b). 

(5) Amendment of awards. Prompt 

action shall be taken to amend any 

award of this special allowance to 

conform with evidence indicating a 

change in basic eligibility, any basic 

entitlement rate, or any effective date 

previously determined. It is the 

claimant’s responsibility to promptly 

notify VA of any change in their status 

or employment which affects eligibility 

or entitlement. 

(6) Rounding of monthly rates. Any 

monthly rate computed under the 

provisions of this paragraph (b), if not 

a multiple of $1, shall be rounded to the 

next lower multiple of $1. 

(c) Claimants not entitled to this 

special allowance. The following are not 

entitled to this special allowance for the 

reasons indicated. 

(1) Claimants eligible for death 

benefits under 38 U.S.C. 1151. The 

deaths in such cases are not serviceconnected. 

(2) Claimants eligible for death 

benefits under 38 U.S.C. 1318. The 

deaths in such cases are not service 

connected. 

(3) Claimants whose claims are based 

on an individual’s service in: 

(i) The Commonwealth Army of the 

Philippines while such forces were in 

the service of the Armed Forces 

pursuant to the military order of the 

President dated July 26, 1941, including 

recognized guerrilla forces (see 38 

U.S.C. 107). 

(ii) The New Philippine Scouts under 

section 14, Public Law 190, 79th 

Congress (see 38 U.S.C. 107). 

(iii) The commissioned corps of the 

Public Health Service (specifically 

excluded by section 156 of Pub. L. 97–

377), or 

(iv) The National Oceanic and 

Atmospheric Administration 

(specifically excluded by section 156 of 

Pub. L. 97–377). 

(d) Appellate jurisdiction. VA shall 

have appellate jurisdiction of all 

determinations made in connection 

with this special allowance. 

(e) Claims—formal and informal. 

Formal claims for this special allowance 

must be filed on a form prescribed by 

the Secretary of Veterans Affairs. When 

informal claims or inquiries as to 

eligibility are received, the appropriate 

application form shall be provided. In 

such cases, the date of receipt of the 

informal claim or inquiry will be 

accepted as the date of claim for this 

special allowance if a formal claim on 

the prescribed form is received within 1 

year from that date. 

(f) Retroactivity and effective dates. 

There is no time limit for filing a claim 

for this special allowance. Upon the 

filing of a claim, the effective date for an 

award of benefits begins on or after the 

first day of the month in which the 

claimant first became eligible for this 

special allowance, except that no 

payment may be made for any period 

prior to January 1, 1983. 

(Authority: Sec. 156, Pub. L. 97–377, 96 Stat. 

1830, 1920 (1982)) 

§ 5.589 Monetary allowance for Vietnam 

veterans’ children born with spina bifida. 

(a) Monthly monetary allowance. VA 

will pay a monthly monetary allowance 

under subchapter I of 38 U.S.C. chapter 

18, based upon the level of disability 

determined under the provisions of 

paragraph (d) of this section, to or for a 

person who VA has determined is an 

individual suffering from spina bifida 

whose biological mother or father is or 

was a Vietnam veteran. An individual 

suffering from spina bifida is entitled to 

only one monthly allowance under this 

section, even if the individual’s 

biological father and mother are or were 

both Vietnam veterans. 

(b) No effect on other VA benefits. 

Receipt of a monetary allowance under 

38 U.S.C. chapter 18 will not affect the 

right of the individual, or the right of 


jlentini on PROD1PC65 with PROPOSAL3
10872 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

any person based on the individual’s 

relationship to that person, to receive 

any other benefit to which the 

individual, or that person, may be 

entitled under any law administered by 

VA. 

(c) Definitions—(1) Vietnam veteran. 

For the purposes of this section, the 

term ‘‘Vietnam veteran’’ means a person 

who performed active military service 

in the Republic of Vietnam during the 

period beginning on January 9, 1962, 

and ending on May 7, 1975, without 

regard to the characterization of the 

person’s service. For the definition of 

‘‘service in the Republic of Vietnam,’’

see § 5.262(a)(1). 

(2) Individual. For the purposes of 

this section, the term ‘‘individual’’

means a person, regardless of age or 

marital status, whose biological father or 

mother is or was a Vietnam veteran and 

who was conceived after the date on 

which the veteran first served in the 

Republic of Vietnam during the Vietnam 

era. Notwithstanding the provisions of 

§ 5.180(b), VA will require the types of 

evidence specified in §§ 5.221 and 5.229 

sufficient to establish in the judgment of 

the Secretary that a person is the 

biological son or daughter of a Vietnam 

veteran. 

(3) Spina bifida. For the purposes of 

this section, the term ‘‘spina bifida’’

means any form and manifestation of 

spina bifida except spina bifida occulta. 

(d) Disability evaluations. (1) Except 

as otherwise specified in this paragraph 

(d), VA will determine the level of 

payment as follows: 

(i) Level I. The individual walks 

without braces or other external support 

as his or her primary means of mobility 

in the community, has no sensory or 

motor impairment of the upper 

extremities, has an IQ of 90 or higher, 

and is continent of urine and feces 

without the use of medication or other 

means to control incontinence. 

(ii) Level II. Provided that none of the 

disabilities is severe enough to warrant 

payment at Level III, and the individual: 

walks with braces or other external 

support as his or her primary means of 

mobility in the community; or, has 

sensory or motor impairment of the 

upper extremities, but is able to grasp 

pen, feed self, and perform self care; or, 

has an IQ of at least 70 but less than 90; 

or, requires medication or other means 

to control the effects of urinary bladder 

impairment and no more than two times 

per week is unable to remain dry for at 

least 3 hours at a time during waking 

hours; or, requires bowel management 

techniques or other treatment to control 

the effects of bowel impairment but 

does not have fecal leakage severe or 

frequent enough to require wearing of 

absorbent materials at least 4 days a 

week; or, has a colostomy that does not 

require wearing a bag. 

(iii) Level III. The individual uses a 

wheelchair as his or her primary means 

of mobility in the community; or, has 

sensory or motor impairment of the 

upper extremities severe enough to 

prevent grasping a pen, feeding self, and 

performing self care; or, has an IQ of 69 

or less; or, despite the use of medication 

or other means to control the effects of 

urinary bladder impairment, at least 

three times per week is unable to remain 

dry for 3 hours at a time during waking 

hours; or, despite bowel management 

techniques or other treatment to control 

the effects of bowel impairment, has 

fecal leakage severe or frequent enough 

to require wearing of absorbent 

materials at least 4 days a week; or, 

regularly requires manual evacuation or 

digital stimulation to empty the bowel; 

or, has a colostomy that requires 

wearing a bag. 

(2) If an individual who would 

otherwise be paid at Level I or II has one 

or more disabilities, such as blindness, 

uncontrolled seizures, or renal failure 

that result either from spina bifida, or 

from treatment procedures for spina 

bifida, the Director of the Compensation 

and Pension Service may increase the 

monthly payment to the level that, in 

his or her judgment, best represents the 

extent to which the disabilities resulting 

from spina bifida limit the individual’s 

ability to engage in ordinary day-to-day 

activities, including activities outside 

the home. A Level II or Level III 

payment will be awarded depending on 

whether the effects of a disability are of 

equivalent severity to the effects 

specified under Level II or Level III. 

(3) VA may accept statements from 

private physicians, or examination 

reports from government or private 

institutions, for the purpose of rating 

spina bifida claims without further 

examination, provided the statements or 

reports are adequate for assessing the 

level of disability due to spina bifida 

under the provisions of paragraph (d)(1) 

of this section. In the absence of 

adequate medical information, VA will 

schedule an examination for the 

purpose of assessing the level of 

disability. 

(4) VA will pay an individual eligible 

for a monetary allowance due to spina 

bifida at Level I unless or until it 

receives medical evidence supporting a 

higher payment. When required to 

reassess the level of disability under 

paragraph (d)(5) or (d)(6) of this section, 

VA will pay an individual eligible for 

this monetary allowance at Level I in 

the absence of evidence adequate to 

support a higher level of disability or if 

the individual fails to report, without 

good cause, for a scheduled 

examination. Examples of good cause 

include, but are not limited to, the 

illness or hospitalization of the 

claimant, death of an immediate family 

member, etc. 

(5) VA will pay individuals under the 

age of 1 year at Level I unless a pediatric 

neurologist or a pediatric neurosurgeon 

certifies that, in his or her medical 

judgment, there is a neurological deficit 

that will prevent the individual from 

ambulating, grasping a pen, feeding 

himself or herself, performing self care, 

or from achieving urinary or fecal 

continence. If any of those deficits are 

present, VA will pay the individual at 

Level III. In either case, VA will reassess 

the level of disability when the 

individual reaches the age of 1 year. 

(6) VA will reassess the level of 

payment whenever it receives medical 

evidence indicating that a change is 

warranted. For individuals between the 

ages of one and twenty-one, however, it 

must reassess the level of payment at 

least every 5 years. 

(e) Effective dates. See § 5.591. 

(Authority: 38 U.S.C. 501, 1805, 1811, 1812, 

1821, 1822, 1823, 1824, 5101) 

§ 5.590 Monetary allowance for female 

Vietnam veterans’ children with certain 

birth defects. 

(a) Monthly monetary allowance. (1) 

General. VA will pay a monthly 

monetary allowance under subchapter II 

of 38 U.S.C. chapter 18 to or for an 

individual whose biological mother is or 

was a Vietnam veteran and who VA has 

determined to have disability resulting 

from one or more covered birth defects. 

Except as provided in paragraph (a)(3) 

of this section, the amount of the 

monetary allowance paid will be based 

upon the level of such disability 

suffered by the individual, as 

determined in accordance with the 

provisions of paragraph (e) of this 

section. 

(2) Affirmative evidence of cause 

other than mother’s service during 

Vietnam era. No monetary allowance 

will be provided under this section 

based on a particular birth defect of an 

individual in any case where affirmative 

evidence establishes that the birth 

defect results from a cause other than 

the active military service of the 

individual’s mother during the Vietnam 

era and, in determining the level of 

disability for an individual with more 

than one birth defect, the particular 

defect resulting from other causes will 

be excluded from consideration. This 

will not prevent VA from paying a 

monetary allowance under this section 

for other birth defects. 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10873 

(3) Nonduplication; spina bifida. In 

the case of an individual whose only 

covered birth defect is spina bifida, a 

monetary allowance will be paid under 

§ 5.589, and not under this section, nor 

will the individual be evaluated for 

disability under this section. In the case 

of an individual who has spina bifida 

and one or more additional covered 

birth defects, a monetary allowance will 

be paid under this section and the 

amount of the monetary allowance will 

be not less than the amount the 

individual would receive if his or her 

only covered birth defect were spina 

bifida. If, but for the individual’s one or 

more additional covered birth defects, 

the monetary allowance payable to or 

for the individual would be based on an 

evaluation at Level I, II, or III, 

respectively, under § 5.589(d), the 

evaluation of the individual’s level of 

disability under paragraph (e) of this 

section will be not less than Level II, III, 

or IV, respectively. 

(b) No effect on other VA benefits. 

Receipt of a monetary allowance under 

38 U.S.C. chapter 18 will not affect the 

right of the individual, or the right of 

any person based on the individual’s 

relationship to that person, to receive 

any other benefit to which the 

individual, or that person, may be 

entitled under any law administered by 

VA. 

(c) Definitions—(1) Vietnam veteran. 

For the purposes of this section, the 

term ‘‘Vietnam veteran’’ means a person 

who performed active military service 

in the Republic of Vietnam during the 

period beginning on February 28, 1961, 

and ending on May 7, 1975, without 

regard to the characterization of the 

person’s service. For the definition of 

‘‘service in the Republic of Vietnam,’’

see § 5.262(a)(1). 

(2) Individual. For the purposes of 

this section, the term ‘‘individual’’

means a person, regardless of age or 

marital status, whose biological mother 

is or was a Vietnam veteran and who 

was conceived after the date on which 

the veteran first entered the Republic of 

Vietnam during the period beginning on 

February 28, 1961, and ending on May 

7, 1975. Notwithstanding the provisions 

of § 5.180(b), VA will require the types 

of evidence specified in §§ 5.221 and 

5.229 sufficient to establish that a 

person is the biological son or daughter 

of a Vietnam veteran. 

(3) Covered birth defect. For the 

purposes of this section, the term 

‘‘covered birth defect’’ means any birth 

defect identified by VA as a birth defect 

that is associated with the service of 

women Vietnam veterans in the 

Republic of Vietnam during the period 

beginning on February 28, 1961, and 

ending on May 7, 1975, and that has 

resulted, or may result, in permanent 

physical or mental disability. However, 

the term ‘‘covered birth defect’’ does not 

include a condition due to a: 

(i) Familial disorder; 

(ii) Birth-related injury; or 

(iii) Fetal or neonatal infirmity with 

well-established causes. 

(d) Identification of covered birth 

defects. All birth defects that are not 

excluded under the provisions of this 

paragraph (d) are covered birth defects. 

(1) Covered birth defects include, but 

are not limited to, the following 

(however, if a birth defect is determined 

to be familial in a particular family, it 

will not be a covered birth defect): 

(i) Achondroplasia; 

(ii) Cleft lip and cleft palate; 

(iii) Congenital heart disease; 

(iv) Congenital talipes equinovarus 

(clubfoot); 

(v) Esophageal and intestinal atresia; 

(vi) Hallerman-Streiff syndrome; 

(vii) Hip dysplasia; 

(viii) Hirschprung’s disease 

(congenital megacolon); 

(ix) Hydrocephalus due to aqueductal 

stenosis; 

(x) Hypospadias; 

(xi) Imperforate anus; 

(xii) Neural tube defects (including 

spina bifida, encephalocele, and 

anencephaly); 

(xiii) Poland syndrome; 

(xiv) Pyloric stenosis; 

(xv) Syndactyly (fused digits); 

(xvi) Tracheoesophageal fistula; 

(xvii) Undescended testicle; and 

(xviii) Williams syndrome. 

(2) Birth defects that are familial 

disorders, including hereditary genetic 

conditions, are not covered birth 

defects. Familial disorders include, but 

are not limited to, the following, unless 

the birth defect is not familial in a 

particular family: 

(i) Albinism; 

(ii) Alpha-antitrypsin deficiency; 

(iii) Crouzon syndrome; 

(iv) Cystic fibrosis; 

(v) Duchenne’s muscular dystrophy; 

(vi) Galactosemia; 

(vii) Hemophilia; 

(viii) Huntington’s disease; 

(ix) Hurler syndrome; 

(x) Kartagener’s syndrome (Primary 

Ciliary Dyskinesia); 

(xi) Marfan syndrome; 

(xii) Neurofibromatosis; 

(xiii) Osteogenesis imperfecta; 

(xiv) Pectus excavatum; 

(xv) Phenylketonuria; 

(xvi) Sickle cell disease; 

(xvii) Tay-Sachs disease; 

(xviii) Thalassemia; and 

(xix) Wilson’s disease. 

(3) Conditions that are congenital 

malignant neoplasms are not covered 

birth defects. These include, but are not 

limited to, the following: 

(i) Medulloblastoma; 

(ii) Neuroblastoma; 

(iii) Retinoblastoma; 

(iv) Teratoma; and 

(v) Wilm’s tumor. 

(4) Conditions that are chromosomal 

disorders are not covered birth defects. 

These include, but are not limited to, 

the following: 

(i) Down syndrome and other 

Trisomies; 

(ii) Fragile X syndrome; 

(iii) Klinefelter’s syndrome; and 

(iv) Turner’s syndrome. 

(5) Conditions that are due to birthrelated injury are not covered birth 

defects. These include, but are not 

limited to, the following: 

(i) Brain damage due to anoxia during 

or around time of birth; 

(ii) Cerebral palsy due to birth trauma, 

(iii) Facial nerve palsy or other 

peripheral nerve injury; 

(iv) Fractured clavicle; and 

(v) Horner’s syndrome due to forceful 

manipulation during birth. 

(6) Conditions that are due to a fetal 

or neonatal infirmity with wellestablished causes or that are 

miscellaneous pediatric conditions are 

not covered birth defects. These 

include, but are not limited to, the 

following: 

(i) Asthma and other allergies; 

(ii) Effects of maternal infection 

during pregnancy, including maternal 

rubella, toxoplasmosis, or syphilis; 

(iii) Fetal alcohol syndrome or fetal 

effects of maternal drug use; 

(iv) Hyaline membrane disease; 

(v) Maternal-infant blood 

incompatibility; 

(vi) Neonatal infections; 

(vii) Neonatal jaundice; 

(viii) Post-infancy deafness/hearing 

impairment (onset after the age of 1 

year); 

(ix) Prematurity; and 

(x) Refractive disorders of the eye. 

(7) Conditions that are developmental 

disorders are not covered birth defects. 

These include, but are not limited to, 

the following: 

(i) Attention deficit disorder; 

(ii) Autism; 

(iii) Epilepsy diagnosed after infancy 

(after the age of 1 year); 

(iv) Learning disorders; and 

(v) Mental retardation (unless part of 

a syndrome that is a covered birth 

defect). 

(8) Conditions that do not result in 

permanent physical or mental disability 

are not covered birth defects. These 

include, but are not limited to: 

(i) Conditions rendered non-disabling 

through treatment; 


jlentini on PROD1PC65 with PROPOSAL3
10874 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

(ii) Congenital heart problems 

surgically corrected or resolved without 

disabling residuals; 

(iii) Heart murmurs unassociated with 

a diagnosed cardiac abnormality; 

(iv) Hemangiomas that have resolved 

with or without treatment; and 

(v) Scars (other than of the head, face, 

or neck) as the only residual of 

corrective surgery for birth defects. 

(e) Disability evaluations. Whenever 

VA determines, upon receipt of 

competent medical evidence, that an 

individual has one or more covered 

birth defects, VA will determine the 

level of disability currently resulting, in 

combination, from the covered birth 

defects and associated disabilities. No 

monetary allowance will be payable 

under this section if VA determines 

under this paragraph (e) that an 

individual has no current disability 

resulting from the covered birth defects, 

unless VA determines that the 

provisions of paragraph (a)(3) of this 

section are for application. Except as 

otherwise provided in paragraph (a)(3) 

of this section, VA will determine the 

level of disability as follows: 

(1) Levels of disability—(i) Level 0. 

The individual has no current disability 

resulting from covered birth defects. 

(ii) Level I. The individual meets one 

or more of the following criteria: 

(A) The individual has residual 

physical or mental effects that only 

occasionally or intermittently limit or 

prevent some daily activities; or 

(B) The individual has disfigurement 

or scarring of the head, face, or neck 

without gross distortion or gross 

asymmetry of any facial feature (nose, 

chin, forehead, eyes (including eyelids), 

ears (auricles), cheeks, or lips). 

(iii) Level II. The individual meets one 

or more of the following criteria: 

(A) The individual has residual 

physical or mental effects that 

frequently or constantly limit or prevent 

some daily activities, but the individual 

is able to work or attend school, carry 

out most household chores, travel, and 

provide age-appropriate self-care, such 

as eating, dressing, grooming, and 

carrying out personal hygiene, and 

communication, behavior, social 

interaction, and intellectual functioning 

are appropriate for age; or 

(B) The individual has disfigurement 

or scarring of the head, face, or neck 

with either gross distortion or gross 

asymmetry of one facial feature or one 

paired set of facial features (nose, chin, 

forehead, eyes (including eyelids), ears 

(auricles), cheeks, or lips). 

(iv) Level III. The individual meets 

one or more of the following criteria: 

(A) The individual has residual 

physical or mental effects that 

frequently or constantly limit or prevent 

most daily activities, but the individual 

is able to provide age-appropriate selfcare, such as eating, dressing, grooming, 

and carrying out personal hygiene; 

(B) The individual is unable to work 

or attend school, travel, or carry out 

household chores, or does so 

intermittently and with difficulty; 

(C) The individual’s communication, 

behavior, social interaction, and 

intellectual functioning are not entirely 

appropriate for age; or 

(D) The individual has disfigurement 

or scarring of the head, face, or neck 

with either gross distortion or gross 

asymmetry of two facial features or two 

paired sets of facial features (nose, chin, 

forehead, eyes (including eyelids), ears 

(auricles), cheeks, or lips). 

(v) Level IV. The individual meets one 

or more of the following criteria: 

(A) The individual has residual 

physical or mental effects that prevent 

age-appropriate self-care, such as eating, 

dressing, grooming, and carrying out 

personal hygiene; 

(B) The individual’s communication, 

behavior, social interaction, and 

intellectual functioning are grossly 

inappropriate for age; or 

(C) The individual has disfigurement 

or scarring of the head, face, or neck 

with either gross distortion or gross 

asymmetry of three facial features or 

three paired sets of facial features (nose, 

chin, forehead, eyes (including eyelids), 

ears (auricles), cheeks, or lips). 

(2) Assessing limitation of daily 

activities. Physical or mental effects on 

the following functions are to be 

considered in assessing limitation of 

daily activities: 

(i) Mobility (ability to stand and walk, 

including balance and coordination); 

(ii) Manual dexterity; 

(iii) Stamina; 

(iv) Speech; 

(v) Hearing; 

(vi) Vision (other than correctable 

refraction errors); 

(vii) Memory; 

(viii) Ability to concentrate; 

(ix) Appropriateness of behavior; and 

(x) Urinary and fecal continence. 

(f) Information for determining 

whether individuals have covered birth 

defects and rating disability levels. (1) 

VA may accept statements from private 

physicians, or examination reports from 

government or private institutions, for 

the purposes of determining whether an 

individual has a covered birth defect 

and for rating claims for covered birth 

defects. If they are adequate for such 

purposes, VA may make the 

determination and rating without 

further examination. In the absence of 

adequate information, VA may schedule 

examinations for the purpose of 

determining whether an individual has 

a covered birth defect and/or assessing 

the level of disability. 

(2) Except in accordance with 

paragraph (a)(3) of this section, VA will 

not pay a monthly monetary allowance 

unless or until VA is able to obtain 

medical evidence adequate to determine 

that an individual has a covered birth 

defect and adequate to assess the level 

of disability due to covered birth 

defects. 

(g) Redeterminations. VA will reassess 

a determination under this section 

whenever it receives evidence 

indicating that a change is warranted. 

(h) Referrals. If a regional office is 

unclear in any case as to whether a 

condition is a covered birth defect, it 

may refer the issue to the Director of the 

Compensation and Pension Service for 

determination. 

(i) Effective dates. See § 5.591. 

(Authority: 38 U.S.C. 501, 1811, 1812, 1813, 

1814, 1815, 1816, 1821, 1822, 1823, 1824, 

5101) 

§ 5.591 Effective dates of awards for 

certain disabled children of Vietnam 

veterans. 

This section provides the effective 

date for an award, reduction, or 

discontinuance of the monthly 

monetary allowance payable under 

§ 5.589 to a Vietnam veteran’s biological 

child who is suffering from spina bifida 

or under § 5.590 of this part to a woman 

Vietnam veteran’s biological child who 

suffers from one or more covered birth 

defects. 

(a) Effective date of award. Except as 

otherwise provided in this paragraph, 

an award of a monetary allowance based 

on an original claim, a claim reopened 

after final denial, or a claim for increase 

will be effective the date VA received 

the claim or the date entitlement arose, 

whichever is later. 

(1) An allowance payable under 

§ 5.589 will not be effective before 

October 1, 1997. 

(2) An allowance payable under 

§ 5.590 will not be effective before 

December 1, 2001. 

(3) Subject to paragraphs (a)(1) and (2) 

of this section, the effective date will be 

the child’s date of birth, if VA received 

the claim within 1 year of the birth date. 

(4) Subject to paragraphs (a)(1) and (2) 

of this section, if a previously denied 

claim is reopened and granted based on 

corrected military records, VA will 

apply the rule in § 3.400(g) of this 

chapter. 

(5) Subject to paragraphs (a)(1) and (2) 

of this section, if a claimant files a claim 

for increase of a monetary allowance 

due to increase in disability, VA will 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 10875 

apply the rule in § 3.400(o)(2) of this 

chapter . 

(6) If the allowance is based on a 

change of law or VA issue, VA will 

apply the rule in § 3.114(a) of this 

chapter. 

(b) Effective dates of reductions or 

discontinuances. Except as otherwise 

provided in this paragraph, the effective 

date of a reduction or discontinuance of 

a monetary allowance shall be fixed in 

accordance with § 3.500(a) of this 

chapter. 

(1) If the monetary allowance was 

paid erroneously because of beneficiary 

error, VA will apply the rule in 

§ 3.500(b)(1) of this chapter. 

(2) If the monetary allowance was 

paid erroneously because of 

administrative error by VA, VA will 

apply the rule in § 3.500(b)(2) of this 

chapter . 

(3) If a discontinuance is due to the 

beneficiary’s death, VA will discontinue 

benefits effective the first day of the 

month of the beneficiary’s death. 

(4) If there is a change of law or VA 

issue, or change in interpretation of a 

law or VA issue, VA will apply the rule 

in § 3.114 of this chapter. 

(5) If a reduction or discontinuance is 

warranted by a change in the 

beneficiary’s physical condition, VA 

will apply the rule in § 3.105(g) of this 

chapter. 

(Authority: 38 U.S.C. 1805, 1832, 5110, 5112) 

§§ 5.592–5.599 [Reserved] 

Ancillary Benefits for Certain ServiceConnected Veterans and Certain 

Members of the Armed Forces Serving 

on Active Duty 

§§ 5.600–5.602 [Reserved] 

§ 5.603 Financial assistance to purchase a 

vehicle and adaptive equipment. 

(a) General. Certain persons with 

qualifying disabilities will be certified 

as eligible for financial assistance to 

purchase a vehicle and necessary 

adaptive equipment. 

(b) Definition of terms. The following 

definitions apply to this section. 

(1) Adaptive equipment. (i) ‘‘Adaptive 

equipment’’ means equipment 

manufactured for sale to the general 

public and added to a vehicle to: 

(A) Make it safe for use by the eligible 

person, and 

(B) Assist the eligible person in 

meeting applicable standards of 

licensure by the proper licensing 

authority. 

(ii) Adaptive equipment includes: 

(A) Automatic transmission as to an 

eligible person who has lost or lost the 

use of a limb 

(B) Power steering, power brakes, 

power window lifts, and power seats 

(C) Air conditioning equipment, if 

such equipment is necessary for the 

health and safety of the eligible person 

and to the safety of others 

(D) Special equipment necessary to 

assist the eligible person in and out of 

the vehicle, regardless of whether the 

vehicle is to be operated by the eligible 

person or is to be operated for such 

person by another person 

(E) Modification of the interior space 

if necessary for the eligible person to 

enter or operate the vehicle. 

(F) Items the Under Secretary for 

Health or designee has deemed to be 

ordinarily necessary for a qualifying 

disability or combination of qualifying 

disabilities, or has deemed necessary in 

an individual case. Such specifications 

of equipment may include a limit on the 

financial assistance to be provided 

based on judgment and experience. 

(2) Vehicle means an automobile, van, 

truck, jeep, tractor, golf cart, or other 

conveyance. 

(c) Eligibility criteria. The claimant 

must meet all of the requirements of this 

paragraph (c). 

(1) Persons eligible. The claimant 

must be: 

(i) A veteran who is entitled to 

compensation under 38 U.S.C. chapter 

11, including compensation under 38 

U.S.C. 1151, for a qualifying disability 

described in paragraph (c)(2) of this 

section; or 

(ii) A member of the Armed Forces 

serving on active duty who has a 

qualifying disability described in 

paragraph (c)(2) of this section that is 

the result of an injury incurred or 

disease contracted in or aggravated by 

active military service. 

(2) Qualifying disabilities. The 

claimant must have one of the following 

disabilities: 

(i) Loss or permanent loss of use of 

one or both feet; 

(ii) Loss or permanent loss of use of 

one or both hands; 

(iii) Permanent impairment of vision 

of both eyes: Central visual acuity of 20/ 

200 or less in the better eye, with 

corrective glasses, or central visual 

acuity of more than 20/200 if there is a 

field defect in which the peripheral 

field has contracted to such an extent 

that the widest diameter of visual field 

subtends an angular distance no greater 

than 20° in the better eye. 

(iv) For the purpose of eligibility for 

adaptive equipment only, ankylosis of 

one or both knees or one or both hips. 

(3) Claim for financial assistance to 

purchase a vehicle and/or adaptive 

equipment. (i) The claimant must file an 

application form for financial assistance 

to purchase a vehicle or adaptive 

equipment, which includes a 

certification by the claimant that the 

vehicle will be operated only by persons 

properly licensed. 

(ii) A claim for financial assistance to 

purchase a vehicle will also be 

considered a claim for adaptive 

equipment necessary to operate the 

vehicle according to the safety standards 

of the licensing authority. 

(iii) There is no time limit in which 

the claimant must apply for the benefits 

under this section. 

(iv) For claimants applying while still 

on active military duty, the application 

form will be deemed filed with VA on 

the date it is shown to be in possession 

of military authorities for transmittal to 

VA. 

(d) Limitations on assistance—(1) 

Financial assistance for vehicles. An 

eligible person is not entitled to benefits 

for the purchase of more than one 

vehicle under the provisions of this 

section. No payments may be made for 

the repair, maintenance, or replacement 

of the vehicle. 

(2) Financial assistance for adaptive 

equipment. An eligible person is not 

entitled to adaptive equipment for more 

than two vehicles in a 4-year period 

unless one of the adapted vehicles is no 

longer available. Payments may be made 

for the repair, replacement, or 

reinstallation of adaptive equipment 

deemed necessary by the Under 

Secretary for Health or designee. See 

§§ 17.156 through 17.158 for additional 

limitations on assistance for adaptive 

equipment. 

(e) VA certification process for 

financial assistance to purchase a 

vehicle and/or adaptive equipment. If a 

claim for financial assistance to 

purchase a vehicle or adaptive 

equipment is approved, VA will issue a 

certificate of eligibility to the claimant. 

(f) Eligible person’s redemption of 

certificate of eligibility. The eligible 

person must give the certificate of 

eligibility to the seller of the vehicle 

and/or adaptive equipment. The seller 

will send the purchase receipt 

certificate of eligibility to VA finance for 

reimbursement for the purchase price, 

or the statutory limit set in 38 U.S.C. 

3902(a), whichever is less. 

(Authority: 38 U.S.C. 3901, 3902, 3903) 

§§ 5.604–5.605 [Reserved] 

§ 5.606 Clothing allowance. 

(a) General. Certain veterans with a 

qualifying disability will be certified 

eligible for a clothing allowance. 

(b) Eligibility criteria. The claimant 

must meet all of the requirements of this 

paragraph (b). 

(1) Disabled veteran. The claimant 

must be a veteran with a serviceVerDate Aug<31>2005 19:19 Mar 08, 2007 Jkt 211001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\09MRP3.SGM 09MRP3

jlentini on PROD1PC65 with PROPOSAL3
10876 Federal Register / Vol. 72, No. 46 / Friday, March 9, 2007 / Proposed Rules 

connected disability, or a veteran with 

a disability compensable under 38 

U.S.C. 1151. 

(2) Qualifying disability. A qualifying 

disability must be shown by VA 

examination, or hospital or examination 

report from a facility specified in 

§ 5.91(a). 

(i) Due to the disability described in 

paragraph (b)(1) of this section, the 

veteran wears or uses a prosthetic or 

orthopedic appliance (including a 

wheelchair) which VA determines tends 

to wear out or tear the veteran’s 

clothing; or 

(ii) The veteran uses prescription 

medication for a skin condition which 

is due to the disability described in 

paragraph (b)(1) of this section, and VA 

determines that the prescribed 

medication causes irreparable damage to 

the veteran’s outer garments. 

(3) Application form for clothing 

allowance. The veteran must file an 

application form for an annual clothing 

allowance. Except as provided in 

paragraph (c) of this section, the veteran 

must reapply for the clothing allowance 

each year. 

(c) Continuing entitlement. VA will 

find that the veteran has continuing 

entitlement to the annual clothing 

allowance without the need to reapply 

each year if the following circumstances 

are met: 

(1) Service connection has been 

established for the loss or loss of use of 

a hand or foot and the disability 

requires use of a prosthetic or 

orthopedic appliance that wears or tears 

clothing; or 

(2) VA makes a finding that the 

disability for which the annual clothing 

allowance was awarded is static in 

nature and that future reevaluations of 

eligibility are unnecessary. 

(d) Annual payment period and 

anniversary date. The clothing 

allowance will be paid annually 

following each 12-month period 

beginning August 1 and ending July 31. 

The ‘‘anniversary date’’ for any 12- 

month period is the August 1 following 

that 12-month period. The ‘‘initial 

anniversary date’’ is the August 1 that 

follows the date when entitlement is 

initially established. A veteran is 

entitled to a clothing allowance 

payment for the 12-month period during 

which the entitlement is initially 

established. 

(e) Time limits for application. (1) If 

a veteran meets the requirements of 

paragraphs (b)(1) and (b)(2) of this 

section as of August 1 (known as the 

‘‘anniversary date’’) of a calendar year, 

the veteran is eligible to receive the 

annual clothing allowance for that year 

if he or she submits a timely application 

form. An application form is timely if it 

is received within 1 year of the veteran’s 

anniversary date (unless the veteran 

receives notice of his or her eligibility 

subsequent to an anniversary date for 

which entitlement is established, in 

which case paragraph (e)(2) of this 

section applies). For example, if VA 

issues a decision on April 1, 2005 that 

establishes service connection for a 

qualifying disability effective February 

1, 2005, the veteran is entitled to the 

2005 clothing allowance if the veteran 

files an application form for the clothing 

allowance within 1 year of August 1, 

2005 (the initial anniversary date). 

(2) If an initial determination of 

service connection for the qualifying 

disability is made subsequent to an 

anniversary date for which entitlement 

is established, the application form for 

clothing allowance may be filed within 

1 year from the date of notice to the 

veteran of such determination. For 

example, if VA issues a decision on 

December 1, 2005, that establishes 

service connection for a qualifying 

disability effective May 1, 2005, the 

veteran is eligible for the 2005 clothing 

allowance if he or she files an 

application form within 1 year of the 

date he or she received notice of the 

December 1, 2005, decision. 

(3) If the veteran does not file the 

application form within 1 year of the 

initial anniversary date or the date 

specified in paragraph (e)(2), the veteran 

will be entitled to payment of the 

clothing allowance for any following 

year for which entitlement is 

established, if the veteran files an 

application form within 1 year of the 

anniversary date for that year. For 

example, if VA issues a decision on 

April 1, 2005, that establishes service 

connection for a qualifying disability 

effective February 1, 2005, and the 

veteran does not file within 1 year of 

August 1, 2005 (his initial anniversary 

date), then he or she is not entitled to 

the 2005 clothing allowance. However, 

the veteran may be entitled to payment 

for any following year. For example, the 

veteran would be entitled to the 2006 

clothing allowance if he or she files an 

application form within 1 year of the 

August 1, 2006 anniversary date. 

(4) If a veteran first meets the 

requirements of paragraphs (b)(1) and 

(b)(2) of this section after August 1 of a 

calendar year, the veteran is not eligible 

for that year’s clothing allowance. The 

veteran may receive the clothing 

allowance for any subsequent year by 

submitting an application within 1 year 

of the anniversary date (August 1) of 

that subsequent year. 

(f) Filipino veterans. Annual clothing 

allowance claims for Filipino veterans 

not permanently residing in the U.S. are 

processed locally in Manila, 

Philippines. Claims authorized for such 

veterans of the U.S. Army or Old 

Philippine Scouts are paid in dollars. 

Claims authorized for such veterans of 

the New Philippine Scouts, 

Commonwealth Army of the 

Philippines, or guerrilla service, are 

paid in Philippine pesos equivalent to 

$0.50 for each dollar authorized under 

the law. 

(Authority: 38 U.S.C. 107, 1162) 

Cross-References: Eligibility based on 

service in Philippine and Insular Forces. See 

§ 5.610. Compensation at the full-dollar rate 

for certain Filipino veterans residing in the 

United States. See § 5.614. 

(g) Other veterans living abroad. The 

appropriate VA medical center will 

process the annual clothing allowance 

payment for those claims under its 

jurisdiction based on the geographical 

area where the veteran maintains a 

permanent address. 

(h) Reduction for incarceration. 

Eligible veterans who are incarcerated 

for any reason for a period of more than 

60 days in a Federal, State, or local 

penal institution and who are provided 

clothing without charge by the 

institution will not receive the full 

clothing allowance payment. The 

amount stated in 38 U.S.C. 1162 will be 

reduced by 1/365th of that amount for 

each day over 60 days that the veteran 

was incarcerated during the 12-month 

eligibility period beginning August 1 

and ending July 31. No reduction will 

be made for the initial 60 days of a 

period of incarceration. 

(Authority: 38 U.S.C. 5313A) 

§§ 5.607–5.609 [Reserved] 

[FR Doc. E7–4146 Filed 3–8–07; 8:45 am] 

BILLING CODE 8320–01–P 


jlentini on PROD1PC65 with PROPOSAL3