16962 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 21 

RIN 2900–AK80 

Veterans and Dependents Education: 

Topping-Up Tuition Assistance; 

Licensing and Certification Tests; Duty 

To Assist Education Claimants 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) adopts this final rule to 

amend the regulations governing 

various aspects of the education 

program VA administers. The final rule 

includes provisions for the payment of 

educational assistance under Survivors’ 

and Dependents’ Educational 

Assistance, the Post-Vietnam Era 

Veterans’ Educational Assistance 

Program, and the Montgomery GI Bill— 

Active Duty (MGIB) for the cost of 

taking tests for licensure or certification; 

provisions for the payment of MGIB to 

individuals on active duty for the 

difference between the portion of tuition 

and expenses covered by off-duty 

military tuition assistance programs and 

the actual charges made by educational 

institutions; provisions regarding VA’s 

duty to assist claimants filing claims for 

educational assistance under the 

education programs VA administers; 

and nonsubstantive changes for the 

purpose of clarity, technical changes, or 

restatements of statutory provisions. 

DATES: Effective Date: This final rule is 

effective May 7, 2007. 

Applicability Dates: The provisions 

that apply to approval of licensing or 

certification tests or the payment of 

educational assistance for the cost of 

taking such tests are applied 

retroactively to March 1, 2001, as 

payment for such tests is authorized for 

tests taken on or after March 1, 2001, in 

the Veterans Benefits and Health Care 

Improvement Act of 2000. 

The provisions concerning payment 

under the MGIB for ‘‘tuition assistance 

top-up’’ are applied retroactively to 

October 30, 2000, the date of enactment 

of the Floyd D. Spence National Defense 

Authorization Act for Fiscal Year 2001. 

The provisions concerning VA’s duty 

to assist claimants filing claims for 

educational assistance apply to claims 

filed on or after November 9, 2000, the 

date of enactment of the Veterans 

Claims Assistance Act of 2000. 

FOR FURTHER INFORMATION CONTACT: 

Lynn M. Nelson, Education Advisor, 

Education Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs (225C), 810 Vermont Avenue, 

NW., Washington, DC 20420, (202) 273– 

7187. 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register on February 22, 2006 (71 FR 

9196), VA published a proposed rule 

proposing to amend subparts B, D, G, 

and K of 38 CFR part 21, regarding 

payment of educational assistance for 

the cost of licensure or certification 

tests; payment of MGIB educational 

assistance to pay the difference between 

the amount of tuition assistance paid by 

the military and the actual charges made 

by the educational institution; and the 

timing and the scope of assistance VA 

will provide to claimants under the 

education programs VA administers 

who file substantially complete 

applications for benefits, or who attempt 

to reopen previously denied claims; and 

various nonsubstantive changes. Some 

of the provisions in the proposed rule 

contained proposed collections of 

information. 

Interested persons were given 60 days 

to submit comments. VA received one 

comment from a veterans’ service 

organization concerning a provision in 

proposed 38 CFR 21.1031(b)(3). In 38 

CFR 21.1031, ‘‘VA responsibilities when 

a claim is filed,’’ VA proposed to revise 

§ 21.1031(b), with the heading ‘‘VA has 

a duty to notify claimants of necessary 

information or evidence.’’ Proposed 

§ 21.1031(b)(1) includes provisions 

concerning the contents of such notice 

and the circumstances under which VA 

has the responsibility to provide such 

notice to a claimant for educational 

assistance benefits. Proposed 

§ 21.1031(b)(2) includes provisions 

concerning a one-year time period for 

providing the information and evidence 

that the notice informs the claimant that 

the claimant must provide, and 

authorizing VA after that period to 

adjudicate the claim based on the 

information and evidence in the file. 

The organization’s comment 

concerned the proposed provision in 

§ 21.1031(b)(3) that would permit VA, 

after providing notice to a claimant 

under proposed § 21.1031(b)(1), to 

decide a claim for educational 

assistance 30 days after the request for 

information or evidence if the claimant 

has not responded. The comment 

contended that § 21.1031 ‘‘should allow 

60 days for response, similar to a 

compensation or pension claim.’’ The 

comment stated that ‘‘[w]e feel there is 

no obvious reason to require a veteran 

or organization to respond so quickly 

* * *.’’ 

As noted in the preamble to the 

proposed rule, VA issued a final rule in 

the Federal Register of August 29, 2001 

(66 FR 45620) amending 38 CFR part 3 

to carry out provisions of the Veterans 

Claims Assistance Act of 2000 with 

respect to claims for benefits that are 

governed by 38 CFR part 3 (including 

compensation, pension, dependency 

and indemnity compensation, burial 

benefits, monetary benefits ancillary to 

those benefits, and special benefits) (66 

FR 45629). Proposed § 21.1031(b)(3) sets 

out the same 30-day provision as does 

current 38 CFR 3.159(b)(1), which was 

adopted in the 2001 final rule for 38 

CFR part 3: that if the claimant has not 

responded to the request within 30 

days, VA may decide the claim before 

the expiration of the one-year period in 

which the claimant may respond. Under 

both § 3.159(b)(1) and the proposed 

§ 21.1031(b)(3), if the claimant 

subsequently submits the specified 

evidence or information within one year 

of VA’s request, VA must readjudicate 

the claim. 

As noted in the preamble to the final 

rule that adopted the 30-day period 

under § 3.159(b)(1), a claimant may 

delay VA action beyond the 30 days by 

responding with a request that VA wait 

beyond the 30-day period while the 

claimant attempts to gather evidence (66 

FR 45623). This would be true under the 

similar language of proposed 

§ 21.1031(b)(3). 

Under § 3.159, it is within VA’s 

discretion to issue a decision after the 

time period specified in the regulation, 

or specified in a notice to a claimant, as 

the time after which VA may decide a 

claim. As indicated in the comment 

comparing the 30-day period in 

proposed § 21.1031(b)(3) to a 60-day 

period for compensation and pension 

claims, VA has stated in notices sent 

under § 3.159 to claimants for 

compensation or pension benefits that 

VA may decide the claim if the claimant 

did not respond within 60 days. 

VA has concluded that, under the 

circumstances concerning the claims for 

education benefits to which § 21.1031 

applies, it is appropriate for this final 

rule to adopt the 30-day time period that 

VA proposed for § 21.1031(b)(3), even if, 

as the comment noted, a different period 

may be used for certain other benefits 

administered by VA. 

Unlike the various types of 

information and evidence that are 

generally needed in substantiating a 

service-connected disability for 

compensation purposes or a qualifying 

disability and financial need for 

pension, substantiating eligibility under 

one of the various educational 

assistance programs VA administers 

generally requires only proof of military 

service. 


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Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 16963 

In addition, VA generally has needed 

more than the 30-day time period in the 

current § 3.159 before VA would have 

been able to issue a determination on a 

compensation and pension claim. In 

contrast, in most instances, prior to or 

within a 30-day period from the date 

that VA provides notice requesting 

additional information or evidence from 

a claimant under an educational 

assistance program, VA has the 

necessary information available to 

determine a claimant’s eligibility under 

an educational assistance program. 

However, VA might not have sufficient 

information to determine an 

individual’s personal monthly rate of 

educational assistance (education 

benefit). For example, under the MGIB 

program, the October 1, 2005, full-time 

rate of basic educational assistance for 

an individual who served three 

continuous years or more on active duty 

is $1,034. Some individuals qualify for 

a MGIB full-time rate that exceeds 

$1,034 due to: voluntary contributions 

they made while serving on active duty; 

entitlement to the Army or Navy College 

Fund; or by serving in the Selected 

Reserve in a critical military occupation 

or unit. If VA requested information 

from a claimant to substantiate his or 

her entitlement to a rate exceeding 

$1,034, and the claimant did not 

provide that information within 30 

days, VA could make a decision based 

on the evidence of record and award 

benefits. Thus, VA could award MGIB 

benefits based on the basic full-time 

monthly rate of $1,034 instead of 

waiting to make a decision until the 

claimant submitted evidence supporting 

entitlement to a higher benefit rate. 

Then, if the claimant subsequently 

submits evidence to support entitlement 

to a higher benefit rate (within one year 

of VA’s letter requesting the evidence), 

VA would, as would be required under 

§ 21.1031, readjudicate the claim, and 

when appropriate recalculate the rate 

and award benefits based on the higher 

monthly rate. VA would pay the 

claimant any additional monies due him 

or her based on the recalculation, 

including any applicable retroactive 

payment. 

In addition to providing claimants 

with funds sooner (as in the example in 

the paragraph above), VA chose a 30- 

day period to encourage the claimant to 

respond quickly so that the claimant 

knows as soon as possible whether or 

not he or she is entitled to benefits. 

Many of the claimants seeking 

educational assistance file an 

application with VA when they enroll 

with an educational institution. Many 

educational institutions have a period of 

time, referred to as the ‘‘drop/add 

period’’, during which a student can 

drop his or her classes without 

incurring tuition costs. The sooner the 

claimant receives VA’s formal 

determination regarding his or her 

eligibility status, the sooner he or she 

can make a decision regarding his or her 

continued enrollment. 

Considering that claimants generally 

have incurred education expenses, that 

education claims do not generally 

require the types of information and 

evidence necessary to substantiate 

compensation or pension claims, that 

VA can provide a determination and 

funds sooner with a 30-day response 

period, that under the provisions of 

proposed § 21.1031, if the claimant 

subsequently submits evidence or 

information to support the claim within 

one year of VA’s letter requesting the 

evidence, VA would readjudicate the 

claim, and the other reasons discussed 

above, VA is making in the final rule no 

change to the proposed 30-day response 

period in 38 CFR 21.1031(b)(3). 

Based on the rationale set forth in the 

proposed rule and in this document, we 

are adopting the provisions of the 

proposed rule as a final rule without 

change except that in the proposed 

parenthetical statements following 

sections in the proposed rule with 

information collection provisions we 

are, where applicable, making changes 

in the final rule to display the approved 

information collection control numbers 

that have been assigned by the Office of 

Management and Budget (OMB). 

Paperwork Reduction Act of 1995 

This final rule contains provisions 

that constitute collections of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501–

3521). In the preamble of the proposed 

rule, we described the collections in the 

proposed rule that would need approval 

by OMB and provided a comment 

period. We did not receive any 

comments concerning those collections. 

OMB has approved those proposed 

collections, and has assigned control 

numbers 2900–0051, 2900–0682, 2900–

0695, 2900–0696, 2900–0697, and 2900–

0698 to them. We display the control 

numbers under the applicable sections 

of the regulations in this final rule. OMB 

assigns a control number for each 

collection of information it approves. 

VA may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

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 final rule have been 

examined and it has been determined to 

be a significant regulatory action under 

the Executive Order because it raises 

novel policy issues. 

Regulatory Flexibility Act 

The Secretary of Veterans Affairs 

hereby certifies that this final rule does 

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 this final rule will affect some 

small entities that are testing 

organizations or educational 

institutions, any economic impact on 

them would be minor. The portions of 

this rule that could have an economic 

impact on these small entities are 

recordkeeping, reporting, and 

application for approval requirements, 

the burdens for which would be the 

minor ones that were discussed in the 

preamble of the proposed rule under the 

heading Paperwork Reduction Act of 

1995. Pursuant to 5 U.S.C. 605(b), this 

rule, therefore, is exempt from the 

initial and final regulatory flexibility 

analyses requirements of sections 603 

and 604. 


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16964 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

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

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

given year. This rule has no such effect 

on State, local, and tribal governments, 

or the private sector. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for 

programs that are affected by this rule 

are 64.117, Survivors and Dependents 

Educational Assistance; 64.120, PostVietnam Era Veterans’ Educational 

Assistance; and 64.124, All-Volunteer 

Force Educational Assistance. This rule 

also affects the Montgomery GI Bill—

Selected Reserve program, for which 

there is no Catalog of Federal Domestic 

Assistance number. 

List of Subjects in 38 CFR Part 21 

Administrative practice and 

procedure, Armed forces, Civil rights, 

Claims, Colleges and universities, 

Conflict of interests, Education, 

Employment, Grant programseducation, Grant programs-veterans, 

Health care, Loan programs-education, 

Loan programs-veterans, Manpower 

training programs, Reporting and 

recordkeeping requirements, Schools, 

Travel and transportation expenses, 

Veterans, Vocational education, 

Vocational rehabilitation. 

Approved: November 30, 2006. 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

■ For the reasons set out above, VA 

amends 38 CFR part 21 (subparts B, D, 

G, and K) as follows: 

PART 21—VOCATIONAL 

REHABILITATION AND EDUCATION 

Subpart B—Claims and Applications 

for Educational Assistance 

■ 1. The authority citation for part 21, 

subpart B is revised to read as follows: 

Authority: 38 U.S.C. 501(a), ch. 51, and as 

noted in specific sections. 

■ 2. Section 21.1029 is amended by: 

■ a. Revising the introductory text. 

■ b. In paragraph (b)(1), removing 

‘‘§ 21.1032’’ and adding, in its place, 

‘‘§ 21.1033’’. 

■ c. Redesignating paragraphs (c), (d), 

and (e) as paragraphs (d), (e), and (i), 

respectively. 

■ d. Adding new paragraph (c). 

■ e. In newly redesignated paragraph 

(e)(1)(ii), removing ‘‘paragraph (c)(1)(i)’’

and adding, in its place, ‘‘paragraph 

(d)(1)(i)’’. 

■ f. In newly redesignated paragraph 

(e)(4), removing ‘‘school’’ and adding, in 

its place, ‘‘educational institution or 

training establishment’’. 

■ g. Adding paragraphs (f), (g), and (h) 

following the authority citation for 

paragraph (e). 

The revision and additions read as 

follows: 

§ 21.1029 Definitions. 

The following definitions of terms 

apply to this subpart and subparts C, D, 

F, G, H, K, and L, to the extent that the 

terms are not otherwise defined in those 

subparts: 

* * * * * 

(c) Educational institution. The term 

educational institution means: 

(1) A vocational school or business 

school; 

(2) A junior college, teachers’ college, 

college, normal school, professional 

school, university, or scientific or 

technical institution; 

(3) A public or private elementary 

school or secondary school; 

(4) Any entity, other than an 

institution of higher learning, that 

provides training for completion of a 

State-approved alternative teacher 

certification program; 

(5) An organization or entity offering 

a licensing or certification test; or 

(6) Any private entity that offers, 

either directly or indirectly under an 

agreement with another entity, a course 

or courses to fulfill requirements for the 

attainment of a license or certificate 

generally recognized as necessary to 

obtain, maintain, or advance in 

employment in a profession or vocation 

in a high technology occupation. 

(Authority: 38 U.S.C. 3452, 3501(a)(6), 

3689(d)) 

* * * * * 

(f) Information. The term information 

means nonevidentiary facts, such as the 

claimant’s Social Security number or 

address, or the name of the educational 

institution the claimant is attending. 

(Authority: 38 U.S.C. 5101, 5102, 5103) 

(g) Substantially complete 

application. (1) The term substantially 

complete application means, for an 

individual’s first application for 

educational assistance administered by 

VA, an application containing—

(i) The claimant’s name; 

(ii) His or her relationship to the 

veteran, if applicable; 

(iii) Sufficient information for VA to 

verify the claimed service, if applicable; 

(iv) The benefit claimed; 

(v) The program of education, if 

applicable; and 

(vi) The name of the educational 

institution or training establishment the 

claimant intends to attend, if applicable. 

(2) For subsequent applications for 

educational assistance administered by 

VA, a substantially complete 

application means an application 

containing the information specified in 

paragraphs (g)(1)(i) through (g)(1)(vi) of 

this section, except that the application 

may omit any information specified in 

paragraphs (g)(1)(ii) or (g)(1)(iii) of this 

section that is already of record with 

VA. 

(Authority: 38 U.S.C. 5102, 5103, 5103A) 

(h) Training establishment. The term 

training establishment means any 

establishment providing apprentice or 

other training on-the-job, including 

those under the supervision of a college, 

university, any State department of 

education, any State apprenticeship 

agency, any State board of vocational 

education, any joint apprenticeship 

committee, the Bureau of 

Apprenticeship and Training 

established in accordance with 29 

U.S.C. chapter 4C, or any agency of the 

Federal government authorized to 

supervise such training. 

(Authority: 38 U.S.C. 3452(e), 3501(a)(9)) 

■ 3. Section 21.1030 is revised to read 

as follows: 

§ 21.1030 Claims. 

(a) Claim for educational assistance. 

(1) The first time an individual claims 

educational assistance administered by 

VA for pursuit of a program of 

education, he or she must file an 

application for educational assistance 

using a form the Secretary prescribes for 

that purpose. 

(2) If an individual changes his or her 

program of education or place of 

training after filing his or her first 

application for educational assistance, 

he or she must file an application 

requesting the change of program or 

place of training using a form the 

Secretary prescribes for that purpose. 

(3) A servicemember must consult 

with his or her education service officer 

before filing an application for 

educational assistance, whether it is the 

first application or an application to 

request a change of program or place of 

training. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501, 

3034(a), 3241(a), 3471, 3513, 5101(a)) 

(b) Filing a claim for educational 

assistance to pay for a licensing or 

certification test. To receive educational 

assistance to pay for a licensing or 


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Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 16965 

certification test, an individual must file 

a claim for educational assistance. 

(1) If the claim is the first claim for 

educational assistance administered by 

VA, the individual must file an 

application for educational assistance 

using a form the Secretary prescribes for 

that purpose and must include the 

information described in paragraphs 

(b)(2)(i) through (b)(2)(vi) of this section. 

(2) If the claim is the second or 

subsequent claim for educational 

assistance, the claim must include: 

(i) The name of the test; 

(ii) The name and address of the 

organization or entity issuing the license 

or certificate; 

(iii) The date the claimant took the 

test; 

(iv) The cost of the test; 

(v) A statement authorizing release of 

the claimant’s test information to VA, 

such as: ‘‘I authorize release of my test 

information to VA’’; and 

(vi) Such other information as the 

Secretary may require. 

(Authority: 38 U.S.C. 501, 3034(a), 3241(a), 

3471, 3513, 5101(a)) 

(c) Filing a claim for educational 

assistance to supplement tuition 

assistance provided under a program 

administered by the Secretary of a 

military department. To receive tuition 

assistance top-up as defined in 

§ 21.4200(hh), an individual must file a 

claim for educational assistance. 

(1) If the claim is the first claim for 

educational assistance administered by 

VA, the individual must file an 

application for educational assistance 

using a form the Secretary prescribes for 

that purpose. 

(2) If the claim is the second or 

subsequent claim for educational 

assistance, the claimant may submit a 

statement that he or she wishes to 

receive tuition assistance top-up. 

(3) The claimant must also submit a 

copy of the form(s) that the military 

service with jurisdiction requires for 

tuition assistance and that had been 

presented to the educational institution, 

covering the course or courses for which 

the claimant wants tuition assistance 

top-up. Examples of these forms 

include: 

(i) DA Form 2171, Request for Tuition 

Assistance-Army Continuing Education 

System; 

(ii) AF Form 1227, Authority for 

Tuition Assistance-Education Services 

Program; 

(iii) NAVMC 10883, Application for 

Tuition Assistance, and either 

NAVEDTRA 1560/5, Tuition Assistance 

Authorization or NAVMC (page 2), 

Tuition Assistance Authorization; 

(iv) Department of Homeland 

Security, USCG CG–4147, Application 

for Off-Duty Assistance; and 

(v) Request for Top-Up: eArmyU 

Program. 

(4) The claimant must also provide to 

VA the following information, to the 

extent it is not contained on any form 

filed under paragraph (c)(1) or (c)(3) of 

this section: 

(i) His or her name; 

(ii) His or her Social Security number; 

(iii) The name of the educational 

institution; 

(iv) The name of the course or courses 

for which the claimant wants 

educational assistance; 

(v) The number of the course or 

courses; 

(vi) The number of credit hours for 

each course; 

(vii) The beginning and ending date of 

each course; 

(viii) The cost of the course or 

courses; and 

(ix) If the claimant doesn’t want to 

receive the full amount of that cost not 

met by the Secretary of the military 

department concerned, the portion that 

the claimant wishes to receive. 

(5) If the claimant’s military 

department uses an electronic tuition 

assistance application process with 

electronic signatures, VA will accept an 

electronic transmission of the approved 

tuition assistance application directly 

from the military department concerned 

on behalf of the claimant if—

(i) The electronic tuition assistance 

application indicates the 

servicemember’s intent to claim tuitionassistance top-up; and 

(ii) The information described in 

paragraph (c)(4) of this section is 

included in the electronic application. 

(Authority: 38 U.S.C. 501, 3034(a), 3241(a), 

3471, 3513, 5101(a)) 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

numbers 2900–0074, 2900–0098, 2900–0099, 

2900–0154, 2900–0695, and 2900–0698.) 

■ 4. Section 21.1031 is amended by: 

■ a. In paragraph (a), removing ‘‘claim 

forms,’’ and adding, in its place, ‘‘VA 

claim forms and’’. 

■ b. Revising paragraph (b) to read as 

follows. 

§ 21.1031 VA responsibilities when a claim 

is filed. 

* * * * * 

(b) VA has a duty to notify claimants 

of necessary information or evidence. 

(1) Except when a claim cannot be 

substantiated because there is no legal 

basis for the claim, or undisputed facts 

render the claimant ineligible for the 

claimed benefit, when VA receives a 

complete or substantially complete 

application for educational assistance 

provided under subpart C, D, G, H, K, 

or L of this part VA will—

(i) Notify the claimant of any 

information and evidence that is 

necessary to substantiate the claim; and 

(ii) Inform the claimant which 

information and evidence, if any, the 

claimant is to provide to VA and which 

information and evidence, if any, VA 

will try to obtain for the claimant. 

(2) The information and evidence that 

VA, pursuant to paragraph (b)(1) of this 

section informs the claimant that the 

claimant must provide, must be 

provided within one year from the date 

of the notice. If VA does not receive 

such information and evidence from the 

claimant within that time period, VA 

may adjudicate the claim based on the 

information and evidence in the file. 

(3) If the claimant has not responded 

to the request within 30 days, VA may 

decide the claim before the expiration of 

the one-year period prescribed in 

paragraph (b)(2) of this section, based on 

all the information and evidence in the 

file, including information and evidence 

it has obtained on behalf of the 

claimant. If VA does so, however, and 

the claimant subsequently provides the 

information and evidence within one 

year of the date of the request, VA must 

readjudicate the claim. If VA’s decision 

on a readjudication is favorable to the 

claimant, the award shall take effect as 

if the prior decision by VA on the claim 

had not been made. 

(4) If VA receives an incomplete 

application for benefits, it will notify 

the claimant of the information 

necessary to complete the application 

and will defer assistance until the 

claimant submits this information. If the 

information necessary to complete the 

application is not received by VA 

within one year from the date of such 

notice, VA cannot pay or provide any 

benefits based on that application. 

(5) For the purpose of this paragraph, 

if VA must notify the claimant, VA will 

provide notice to: 

(i) The claimant; 

(ii) His or her fiduciary, if any; and 

(iii) His or her representative, if any. 

(Authority: 38 U.S.C. 5102, 5103, 

5103A(a)(3)) 

§ 21.1032 [Redesignated as § 21.1033] 

■ 5. Section 21.1032 is redesignated as 

§ 21.1033. 

■ 6. New § 21.1032 is added to read as 

follows: 


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16966 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 

§ 21.1032 VA has a duty to assist 

claimants in obtaining evidence. 

(a) VA’s duty to assist begins when VA 

receives a complete or substantially 

complete application. (1) Except as 

provided in paragraph (d) of this 

section, upon receipt of a complete or 

substantially complete application for 

educational assistance under subpart C, 

D, G, H, K, or L of this part, VA will—

(i) Make reasonable efforts to help a 

claimant obtain evidence necessary to 

substantiate the claim; and 

(ii) Give the assistance described in 

paragraphs (b) and (c) of this section to 

an individual attempting to reopen a 

finally decided claim. 

(2) VA will not pay any fees a 

custodian of records may charge to 

provide the records VA requests. 

(Authority: 38 U.S.C. 5103A) 

(b) Obtaining records not in the 

custody of a Federal department or 

agency. (1) VA will make reasonable 

efforts to obtain relevant records not in 

the custody of a Federal department or 

agency. These records include relevant 

records from: 

(i) State or local governments; 

(ii) Private medical care providers; 

(iii) Current or former employers; and 

(iv) Other non-Federal governmental 

sources. 

(2) The reasonable efforts described in 

paragraph (b)(1) of this section will 

generally consist of an initial request for 

the records and, if VA does not receive 

the records, at least one follow-up 

request. The following are exceptions to 

this provision concerning the number of 

requests that VA generally will make: 

(i) VA will not make a follow-up 

request if a response to the initial 

request indicates that the records sought 

do not exist or that a follow-up request 

for the records would be futile. 

(ii) If VA receives information 

showing that subsequent requests to the 

initial or another custodian could result 

in obtaining the records sought, 

reasonable efforts will include an initial 

request and, if VA does not receive the 

records, at least one follow-up request to 

the new source or an additional request 

to the original source. 

(3) The claimant must cooperate fully 

with VA’s reasonable efforts to obtain 

relevant records from non-Federal 

agency or department custodians. The 

claimant must provide enough 

information to identify and locate the 

existing records, including—

(i) The person, company, agency, or 

other custodian holding the records; 

(ii) The approximate time frame 

covered by the records; and 

(iii) In the case of medical treatment 

records, the condition for which 

treatment was provided. 

(4) If necessary, the claimant must 

authorize the release of existing records 

in a form acceptable to the person, 

company, agency, or other custodian 

holding the records. 

(Authority: 38 U.S.C. 5103A) 

(c) Obtaining records in the custody of 

a Federal department or agency. (1) VA 

will make as many requests as are 

necessary to obtain relevant records 

from a Federal department or agency. 

These records include but are not 

limited to: 

(i) Military records; 

(ii) Medical and other records from 

VA medical facilities; 

(iii) Records from non-VA facilities 

providing examination or treatment at 

VA expense; and 

(iv) Records from other Federal 

agencies. 

(2) VA will end its efforts to obtain 

records from a Federal department or 

agency only if VA concludes that the 

records sought do not exist or that 

further efforts to obtain those records 

would be futile. Cases in which VA may 

conclude that no further efforts are 

required include cases in which the 

Federal department or agency advises 

VA that the requested records do not 

exist or that the custodian of such 

records does not have them. 

(3) The claimant must cooperate fully 

with VA’s reasonable efforts to obtain 

relevant records from Federal 

department or agency custodians. At 

VA’s request, the claimant must provide 

enough information to identify and 

locate the existing records, including—

(i) The custodian or agency holding 

the records; 

(ii) The approximate time frame 

covered by the records; and 

(iii) In the case of medical treatment 

records, the condition for which 

treatment was provided. 

(4) If necessary, the claimant must 

authorize the release of existing records 

in a form acceptable to the custodian or 

agency holding the records. 

(Authority: 38 U.S.C. 5103A) 

(d) Circumstances where VA will 

refrain from or discontinue providing 

assistance. VA will refrain from 

providing assistance in obtaining 

evidence for a claim if the substantially 

complete or complete application for 

benefits indicates that there is no 

reasonable possibility that any 

assistance VA would provide to the 

claimant would substantiate the claim. 

VA will discontinue providing 

assistance in obtaining evidence for a 

claim if the evidence obtained indicates 

that there is no reasonable possibility 

that further assistance would 

substantiate the claim. Circumstances in 

which VA will refrain from or 

discontinue providing assistance in 

obtaining evidence include, but are not 

limited to: 

(1) The claimant’s ineligibility for the 

benefit sought because of lack of 

qualifying service, lack of veteran status, 

or other lack of legal eligibility; 

(2) Claims that are inherently not 

credible or clearly lack merit; and 

(3) An application requesting a benefit 

to which the claimant is not entitled as 

a matter of law. 

(Authority: 38 U.S.C. 5103A) 

(e) Duty to notify claimant of inability 

to obtain records. (1) VA will notify the 

claimant either orally or in writing 

when VA: 

(i) Makes reasonable efforts to obtain 

relevant non-Federal records, but is 

unable to obtain them; or 

(ii) After continued efforts to obtain 

Federal records, concludes that it is 

reasonably certain they do not exist or 

that further efforts to obtain them would 

be futile. 

(2) For non-Federal records requests, 

VA may provide the notice to the 

claimant at the same time it makes its 

final attempt to obtain the relevant 

records. 

(3) VA will make a record of any oral 

notice conveyed under paragraph (e) of 

this section to the claimant. 

(4) The notice to the claimant must 

contain the following information: 

(i) The identity of the records VA was 

unable to obtain; 

(ii) An explanation of the efforts VA 

made to obtain the records; 

(iii) The fact described in paragraph 

(e)(1)(i) or (e)(1)(ii) of this section; 

(iv) A description of any further 

action VA will take regarding the claim, 

including, but not limited to, notice that 

VA will decide the claim based on the 

evidence of record unless the claimant 

submits the records VA was unable to 

obtain; and 

(v) A notice that the claimant is 

ultimately responsible for obtaining the 

evidence. 

(5) If VA becomes aware of the 

existence of relevant records before 

deciding the claim, VA will notify the 

claimant of the existence of such 

records and ask that the claimant 

provide a release for the records. If the 

claimant does not provide any necessary 

release of the relevant records that VA 

is unable to obtain, VA will ask that the 

claimant obtain the records and provide 

them to VA. 

(6) For the purpose of this section, if 

VA must notify the claimant, VA will 

provide notice to: 

(i) The claimant; 

(ii) His or her fiduciary, if any; and 


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(iii) His or her representative, if any. 

(Authority: 38 U.S.C. 5102(b), 5103(a), 

5103A) 

§ 21.1033 [Amended] 

■ 6a. Newly redesignated § 21.1033 is 

amended by removing and reserving 

paragraph (b). 

Subpart D—Administration of 

Educational Assistance Programs 

■ 7. The authority citation for part 21, 

subpart D is revised to read as follows: 

Authority: 10 U.S.C. 2141 note, ch. 1606; 

38 U.S.C. 501(a), chs. 30, 32, 34, 35, 36, and 

as noted in specific sections. 

■ 8. Section 21.4005 is amended by: 

■ a. Adding introductory text to the 

section. 

■ b. Revising the paragraph (a) heading 

and paragraphs (a)(1) and (a)(2), and the 

authority citation at the end of 

paragraph (a). 

■ c. Redesignating paragraphs (a)(3) and 

(a)(4) as paragraphs (a)(5) and (a)(7), 

respectively. 

■ d. Adding new paragraphs (a)(3), 

(a)(4), and (a)(6). 

■ e. In newly redesignated paragraph 

(a)(5), removing ‘‘a school’’ and adding, 

in its place, ‘‘an educational institution’’

and removing ‘‘such school.’’ and 

adding, in its place, ‘‘such educational 

institution.’’. 

■ f. Redesignating paragraphs 

(b)(1)(ii)(a) through (b)(1)(ii)(f) as 

paragraphs (b)(1)(ii)(A) through 

(b)(1)(ii)(F), respectively. 

■ g. Revising newly redesignated 

paragraph (b)(1)(ii)(F). 

■ h. In paragraphs (b)(1)(i) and (b)(2)(i), 

removing ‘‘school’’ and adding, in its 

place, ‘‘educational institution’’. 

■ i. Redesignating paragraphs 

(b)(2)(ii)(a) and (b)(2)(ii)(b) as 

paragraphs (b)(2)(ii)(A) and (b)(2)(ii)(B), 

respectively. 

■ j. Removing the authority citation 

following newly redesignated paragraph 

(b)(2)(ii)(A) and adding an authority 

citation following newly redesignated 

paragraph (b)(2)(ii)(B). 

■ k. In newly redesignated paragraphs 

(b)(1)(ii)(D), (b)(2)(ii)(A), and 

(b)(2)(ii)(B), removing ‘‘schools’’ and 

adding, in its place, ‘‘educational 

institutions’’. 

■ l. In newly redesignated paragraph 

(b)(2)(ii)(B), removing ‘‘persons.’’ and 

adding, in its place, ‘‘persons, or 

desiring to offer licensing or 

certification tests to veterans or eligible 

persons.’’. 

■ m. In paragraph (c)(1), removing 

‘‘request for’’ and adding, in its place, 

‘‘requests for’’. 

■ n. Removing the authority citation 

following paragraph (c)(2) and adding 

an authority citation following 

paragraph (c)(3). 

■ o. Revising paragraph (d). 

■ p. In paragraph (e), redesignating 

paragraphs (e)(1) through (e)(3) as 

paragraphs (e)(1)(i) through (e)(1)(iii), 

respectively; designating the 

introductory text following the 

paragraph heading as paragraph (e)(1) 

introductory text; and designating the 

undesignated paragraph as paragraph 

(e)(2). 

■ q. In newly redesignated paragraph 

(e)(1) introductory text, removing 

‘‘when:’’ and adding, in its place, 

‘‘when, in circumstances involving a 

finding of conflicting interests:’’. 

■ r. In newly redesignated paragraph 

(e)(2), removing ‘‘school’’ and adding, in 

its place, ‘‘educational institution’’. 

■ s. Adding an authority citation for 

paragraph (e). 

■ t. Removing paragraph (f). 

The revisions and additions read as 

follows: 

§ 21.4005 Conflicting interests. 

For the purposes of this section, a 

person will be considered to be an 

‘‘officer’’ of the State approving agency 

or VA when he or she has authority to 

exercise supervisory authority, and 

‘‘educational institution’’ includes an 

organization or entity offering licensing 

or certification tests. 

(Authority: 38 U.S.C. 3683, 3689) 

(a) A conflict of interest can cause the 

dismissal of a VA or State approving 

agency officer or employee and other 

adverse consequences. (1) An officer or 

employee of VA will be immediately 

dismissed from his or her office or 

employment, if while such an officer or 

employee he or she has owned any 

interest in, or received any wages, 

salary, dividends, profits, gratuities, or 

services from any educational 

institution operated for profit—

(i) In which a veteran or eligible 

person was pursuing a course of 

education under 10 U.S.C. chapter 1606 

or 38 U.S.C. chapter 30, 32, 34, 35, or 

36; or 

(ii) Offering a licensing or certification 

test that is approved for payment of 

educational assistance under 38 U.S.C. 

chapter 30, 32, or 35 to veterans or 

eligible persons who take that test. 

(2) Except as provided in paragraph 

(a)(3) or (c) of this section, VA will 

discontinue payments under § 21.4153 

to a State approving agency when the 

Secretary finds that any individual who 

is an officer or employee of a State 

approving agency has, while he or she 

was such an officer or employee, owned 

any interest in, or received any wages, 

salary, dividends, profits, gratuities, or 

services from any educational 

institution operated for profit—

(i) In which a veteran or eligible 

person was pursuing a course of 

education or training under 10 U.S.C. 

chapter 1606 or 38 U.S.C. chapter 30, 

32, 34, 35, or 36; or 

(ii) Offering a licensing or certification 

test that is approved for payment of 

educational assistance under 38 U.S.C. 

chapter 30, 32, or 35 to veterans or 

eligible persons who take that test. 

(3) VA will not discontinue payments 

to a State approving agency under 

paragraph (a)(2) of this section if the 

State approving agency, after learning 

that it has any officer or employee 

described in that paragraph, acts 

without delay to end the employment of 

that individual. 

(4) If VA discontinues payments to a 

State approving agency pursuant to 

paragraph (a)(2) of this section, VA will 

not resume these payments while such 

an individual is an officer or employee 

of the: 

(i) State approving agency; 

(ii) State Department of Veterans 

Affairs; or 

(iii) State Department of Education. 

* * * * * 

(6) If a State approving agency finds 

that any officer or employee of VA or of 

the State approving agency owns an 

interest in, or receives wages, salary, 

dividends, profits, gratuities, or services 

from an organization or entity, operated 

for profit, that offers licensing or 

certification tests, the State approving 

agency: 

(i) Will not approve any licensing or 

certification test that organization or 

entity offers; and 

(ii) Will withdraw approval of any 

licensing or certification test that 

organization or entity offers. 

* * * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241, 3683, 3689) 

(b) * * * 

(1) * * * 

(ii) * * * 

(F) His or her position is not 

connected in any way with the 

inspection, approval, or supervision of 

educational institutions desiring to train 

veterans or eligible persons or to offer a 

licensing or certification test; or with 

the processing of claims by or making 

payments to veterans and eligible 

persons for taking an approved licensing 

or certification test. 

(2) * * * 

(ii) * * * 

(B) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241, 3683, 3689) 


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(c) * * * 

(3) * * * 

(Authority: 38 U.S.C. 512(a), 3683) 

(d) Notice when VA does not grant a 

requested waiver. When VA has denied 

a request for waiver of application of 

paragraph (a)(1) or (a)(2) of this section, 

VA will immediately notify the State 

approving agency and the educational 

institution: 

(1) That the approval of courses or 

licensing and certification tests offered 

by the educational institution must be 

withdrawn; 

(2) The reasons for the withdrawal of 

approval; and 

(3) The conditions that will permit the 

courses or such tests to be approved 

again. 

(Authority: 38 U.S.C. 3683, 3689(d)) 

(e) * * * 

(Authority: 38 U.S.C. 3683, 3690, 5104) 

■ 9. Section 21.4008 is revised to read 

as follows: 

§ 21.4008 Prevention of overpayments. 

(a) Prevention of overpayments to 

veterans and eligible persons enrolled in 

educational institutions. When approval 

of a course may be withdrawn, and 

overpayments may exist or may be 

created, VA may suspend further 

payments to veterans and eligible 

persons enrolled in the educational 

institution offering the course until the 

question of withdrawing approval is 

resolved. See § 21.4210. 

(Authority: 38 U.S.C. 3690(b)) 

(b) Prevention of overpayments to 

veterans and eligible persons taking 

licensing and certification tests. When 

approval of a licensing or certification 

test may be withdrawn, and 

overpayments may exist or may be 

created, VA may suspend payments to 

veterans and eligible persons taking that 

test until the question of withdrawing 

approval is resolved. See § 21.4210. 

(Authority: 38 U.S.C. 3689(a), 3690(b)) 

■ 10. Section 21.4009 is amended by: 

■ a. Revising the section heading. 

■ b. Adding introductory text. 

■ c. Revising paragraphs (c) and (d). 

■ d. In paragraph (e), removing ‘‘A 

school’’ and adding, in its place, ‘‘An 

educational institution’’, and removing 

‘‘the school’’ and adding, in its place, 

‘‘the educational institution’’. 

■ e. Adding authority citations 

following paragraphs (e) through (j), 

respectively. 

■ f. In paragraph (f), removing ‘‘veteran’’

each place that it appears and adding, 

in its place, ‘‘veteran, reservist,’’, and 

removing ‘‘school’’ each place that it 

appears and adding, in its place, 

‘‘educational institution’’. 

■ g. In paragraphs (g) and (h), removing 

‘‘the school’’ each place that it appears 

and adding, in its place, ‘‘the 

educational institution’’. 

■ h. In paragraph (g), in its heading, 

removing ‘‘school’’ and adding, in its 

place, ‘‘educational institution’’ and, in 

its text, removing ‘‘The school’’ and 

adding, in its place, ‘‘The educational 

institution’’. 

■ i. In paragraph (i), removing ‘‘school 

and’’ and adding, in its place, 

‘‘educational institution and’’. 

■ j. In paragraph (j), removing ‘‘a 

school’s’’ and adding, in its place, ‘‘an 

educational institution’s’’. 

The additions and revisions read as 

follows: 

§ 21.4009 Waiver or recovery of 

overpayments. 

For the purposes of this section, 

‘‘educational institution’’ includes an 

organization or entity offering licensing 

or certification tests. 

* * * * * 

(c) Committee on School Liability. (1) 

Each VA Regional Processing Office 

shall have a Committee on School 

Liability. For the purposes of this 

section, the Manila Regional Office is 

considered the VA Regional Processing 

Office of jurisdiction for educational 

institutions located in the Philippines. 

(2) The Secretary delegates to each 

Committee on School Liability, and to 

any panel that the chairperson of the 

Committee may designate and draw 

from the Committee, the authority to 

find whether an educational institution 

is liable for an overpayment. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

512(a), 3034(a), 3241, 3685, 3689(d)) 

(d) Initial decision. (1) The Education 

Officer of the VA Regional Processing 

Office of jurisdiction, or the Service 

Center Manager when the Manila 

Regional Office is considered the VA 

Regional Processing Office of 

jurisdiction, will decide whether there 

is evidence that would warrant a finding 

that an educational institution is 

potentially liable for an overpayment. 

(2) Following each finding of 

potential liability, the Finance Officer of 

the VA Regional Processing Office of 

jurisdiction will notify the educational 

institution in writing of VA’s intent to 

apply the liability provisions of 

paragraph (a) of this section. The notice 

will—

(i) Identify the students who were 

overpaid; 

(ii) Identify the veterans and eligible 

persons who took the licensing or 

certification test and were overpaid; 

(iii) Set out in the case of each 

student, or in the case of each veteran 

or eligible person who took the test, the 

educational institution’s actions or 

omissions which resulted in the finding 

that the educational institution was 

potentially liable for the overpayment; 

and 

(iv) State that VA will determine 

liability on the basis of the evidence of 

record unless the VA Regional 

Processing Office of jurisdiction 

receives additional evidence or a 

request for a hearing within 30 days of 

the date the educational institution 

received the notice. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

512(a), 3034(a), 3241, 3685, 3689(d)) 

(e) * * * 

(Authority: 38 U.S.C. 512(a), 3685, 3689) 

(f) * * * 

(Authority: 38 U.S.C. 3685, 3689) 

(g) * * * 

(Authority: 38 U.S.C. 512(a), 3685, 3689) 

(h) * * * 

(Authority: 38 U.S.C. 512(a), 3685, 3689) 

(i) * * * 

(Authority: 38 U.S.C. 512(a), 3685, 3689) 

(j) * * * 

(Authority: 38 U.S.C. 512(a), 3685, 3689) 

■ 11. Section 21.4131 is amended by: 

■ a. Revising the introductory text. 

■ b. Redesignating paragraph (a)(1) 

introductory text and paragraphs 

(a)(1)(i) through (a)(1)(iii) as paragraph 

(a)(1)(i) and paragraphs (a)(1)(i)(A) 

through (a)(1)(i)(C), respectively; 

redesignating paragraph (a)(2) 

introductory text and paragraphs 

(a)(2)(i) and (a)(2)(ii) as paragraph 

(a)(1)(ii) and paragraphs (a)(1)(ii)(A) and 

(a)(1)(ii)(B), respectively; and adding 

new paragraph (a)(1) introductory text 

and new paragraph (a)(2). 

■ c. Revising the authority citation 

following paragraph (a). 

■ d. Redesignating paragraph (d)(1) 

introductory text and paragraphs 

(d)(1)(i) through (d)(1)(iv) as paragraph 

(d)(1)(i) and paragraphs (d)(1)(i)(A) 

through (d)(1)(i)(D), respectively; 

redesignating paragraph (d)(2) 

introductory text and paragraphs 

(d)(2)(i) and (d)(2)(ii) as paragraph 

(d)(1)(ii) and paragraphs (d)(1)(ii)(A) 

and (d)(1)(ii)(B), respectively; and 

adding new paragraph (d)(1) 

introductory text and new paragraph 

(d)(2). 

■ e. Revising the authority citation 

following paragraph (d). 

The revisions and additions read as 

follows: 


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§ 21.4131 Commencing dates. 

VA will determine under this section 

the commencing date of an award or 

increased award of educational 

assistance provided pursuant to subpart 

C or G. When more than one paragraph 

in this section applies, VA will award 

educational assistance using the latest of 

the applicable commencing dates. 

(a) * * * 

(1) For other than licensing or 

certification tests. 

* * * * * 

(2) For licensing or certification tests. 

VA will award educational assistance 

for the cost of a licensing or certification 

test only when the veteran or 

servicemember takes such test—

(i) While the test is approved under 

38 U.S.C. chapter 36; 

(ii) While the veteran or 

servicemember is eligible for 

educational assistance under this 

subpart; and 

(iii) No more than one year before the 

date VA receives a claim for 

reimbursement of the cost of the test. 

(Authority: 38 U.S.C. 3672, 3689, 5110, 5113) 

* * * * * 

(d) * * * 

(1) For other than licensing or 

certification tests. 

* * * * * 

(2) For licensing or certification tests. 

VA will award educational assistance 

for the cost of a licensing or certification 

test only when the veteran or 

servicemember takes such test—

(i) While the test is approved under 

38 U.S.C. chapter 36; 

(ii) While the veteran or 

servicemember is eligible for 

educational assistance under this 

subpart; and 

(iii) No more than one year before the 

date VA receives a claim for 

reimbursement of the cost of the test. 

(Authority: 38 U.S.C. 3512, 3672, 3689, 5110, 

5113) 

■ 12. In § 21.4146, paragraph (c) is 

amended by removing ‘‘institution’’

both places it appears, and adding, in its 

place, ‘‘institution (other than an 

organization or entity offering a 

licensing or certification test)’’. 

■ 13. Section 21.4150 is amended by: 

■ a. In the introductory text of 

paragraph (c), removing ‘‘will, with 

respect to a State, be deemed to refer to 

VA when that State:’’ and adding, in its 

place, ‘‘will be deemed to refer to VA:’’. 

■ b. Redesignating paragraphs (c)(1) and 

(2) as paragraphs (c)(1)(i) and (ii), 

respectively. 

■ c. In newly redesignated paragraph 

(c)(1)(ii), removing ‘‘§ 21.4153 of this 

part.’’ and adding, in its place, 

‘‘§ 21.4153; and’’. 

■ d. Adding paragraph (c)(1) 

introductory text, new paragraph (c)(2), 

and paragraph (g). 

■ e. Revising the cross reference at the 

end of the section. 

The additions and revision read as 

follows: 

§ 21.4150 Designation. 

* * * * * 

(c) * * * 

(1) With respect to a State, when that 

State: 

* * * * * 

(2) When VA has approval, 

disapproval, or suspension authority 

(under paragraphs (d), (e), (f), or (g) of 

this section, § 21.4152, or as otherwise 

provided by law). 

* * * * * 

(g) Approval under 38 U.S.C. 3689 of 

a licensing or certification test offered 

by any agency or instrumentality of the 

Federal government will be under the 

authority of the Secretary. 

(Authority: 38 U.S.C. 3689) 

Cross Reference: Course and licensing and 

certification test approval; jurisdiction and 

notices. See § 21.4250. 

■ 14. Section 21.4151 is amended by: 

■ a. In paragraph (b)(3), removing the 

word ‘‘and’’. 

■ b. Redesignating paragraph (b)(4) and 

its authority citation as paragraph (b)(6) 

and revising the authority citation 

following newly redesignated paragraph 

(b)(6). 

■ c. Adding new paragraph (b)(4) and 

paragraph (b)(5). 

The additions and revision read as 

follows: 

§ 21.4151 Cooperation. 

* * * * * 

(b) * * * 

(4) Determining those licensing and 

certification tests that may be approved 

for cost reimbursement to veterans and 

eligible persons; 

(5) Ascertaining whether an 

organization or entity offering an 

approved licensing or certification test 

complies at all times with the 

provisions of 38 U.S.C. 3689; and 

* * * * * 

(Authority: 38 U.S.C. 3672, 3673, 3674, 3689) 

* * * * * 

■ 15. Section 21.4152(b)(5) is amended 

by removing ‘‘schools or courses’’ both 

times it appears and adding, in its place, 

‘‘schools, courses, or licensing or 

certification tests’’. 

■ 16. Section 21.4153 is amended by: 

■ a. Adding introductory text. 

■ b. Removing the authority citation 

following paragraph (a)(1)(ii). 

■ c. Revising the authority citation 

following paragraph (a)(2)(ii). 

The revisions and addition read as 

follows: 

§ 21.4153 Reimbursement of expenses. 

For the purposes of this section, other 

than paragraph (d)(4) of this section, 

‘‘educational institution’’ includes an 

organization or entity offering licensing 

or certification tests. 

(a) * * * 

(2) * * * 

(ii) * * * 

(Authority: 38 U.S.C. 3674, 3689) 

* * * * * 

■ 17. Section 21.4154 is amended by 

revising the information collection 

approval parenthetical at the end of the 

section to read as follows: 

§ 21.4154 Report of activities. 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

number 2900–0051.) 

■ 18. Section 21.4200 is amended by: 

■ a. In paragraph (a)(5), removing 

‘‘during the period beginning on 

November 2, 1994, and ending on 

September 30, 1996’’. 

■ b. Adding introductory text. 

■ c. Revising paragraph (c). 

■ d. Adding paragraphs (ee), (ff), (gg), 

(hh), and (ii). 

The revision and additions read as 

follows: 

§ 21.4200 Definitions. 

The definitions in this section apply 

to this subpart, except as otherwise 

provided. The definitions of terms 

defined in this section also apply to 

subparts C, F, G, H, K, and L if they are 

not otherwise defined for purposes of 

those subparts. 

* * * * * 

(c) Training establishment. The term 

training establishment means any 

establishment providing apprentice or 

other training on-the-job, including 

those under the supervision of a college, 

university, any State department of 

education, any State apprenticeship 

agency, any State board of vocational 

education, any joint apprenticeship 

committee, the Bureau of 

Apprenticeship and Training 

established in accordance with 29 

U.S.C. chapter 4C, or any agency of the 

Federal government authorized to 

supervise such training. 

(Authority: 38 U.S.C. 3452(e), 3501(a)(9)) 

* * * * * 

(ee) Certification test. The term 

certification test means a test an 

individual must pass in order to receive 

a certificate that provides an affirmation 


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of an individual’s qualifications in a 

specified occupation. 

(Authority: 38 U.S.C. 3452(b), 3501(a)(5), 

3689) 

(ff) Licensing test. The term licensing 

test means a test offered by a State, 

local, or Federal agency, the passing of 

which is a means, or part of a means, 

to obtain a license. That license must be 

required by law in order for the 

individual to practice an occupation in 

the political jurisdiction of the agency 

offering the test. 

(Authority: 38 U.S.C. 3452(b), 3501(a)(5), 

3689) 

(gg) Organization or entity offering a 

licensing or certification test. (1) The 

term organization or entity offering a 

licensing or certification test means: 

(i) An organization or entity that 

causes a licensing test to be given and 

that will issue a license to an individual 

who passes the test; 

(ii) An organization or entity that 

causes a certification test to be given 

and that will issue a certificate to an 

individual who passes the test; or 

(iii) An organization or entity that 

administers a licensing or certification 

test for the organization or entity that 

will issue a license or certificate, 

respectively, to the individual who 

passes the test, provided that the 

administering organization or entity can 

provide all required information and 

certifications under § 21.4268 to the 

State approving agency and to VA. 

(2) This term does not include: 

(i) An organization or entity that 

develops and/or proctors a licensing or 

certification test but does not issue the 

license or certificate; or 

(ii) An organization or entity that 

administers a test but does not issue the 

license or certificate if that 

administering organization or entity 

cannot provide all required information 

and certifications under § 21.4268 to the 

State approving agency and to VA. 

(Authority: 38 U.S.C. 3452(b), 3501(a)(5), 

3689) 

(hh) Tuition assistance top-up. The 

term tuition assistance top-up means a 

payment of basic educational assistance 

to meet all or a portion of the charges 

of an educational institution for the 

education or training of a 

servicemember that are not met by the 

Secretary of the military department 

concerned under 10 U.S.C. 2007(a) or 

(c). 

(Authority: 38 U.S.C. 3014(b)) 

(ii) VA Regional Processing Office. 

The term VA Regional Processing Office 

means a VA office where claims for 

educational assistance under 38 U.S.C. 

chapters 30, 32, and 35 and 10 U.S.C. 

chapter 1606 are allowed or disallowed. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241, 3685, 3689) 

* * * * * 

■ 19. Section 21.4206 is amended by: 

■ a. In the introductory text and 

paragraph (a), removing ‘‘Chapter’’ and 

‘‘Chapters’’ each place that they appear, 

and adding, in their place, ‘‘chapter’’

and removing ‘‘on October 31 of that’’

and adding, in its place, ‘‘during that 

calendar’’. 

■ b. Revising paragraph (b). 

The revision reads as follows: 

§ 21.4206 Reporting fee. 

* * * * * 

(b) In computing the reporting fee VA 

will not count a veteran or 

servicemember whose only receipt of 

educational assistance under 38 U.S.C. 

chapter 30 during a calendar year was 

tuition assistance top-up. 

(Authority: 38 U.S.C. 3014(b), 3684(c)) 

* * * * * 

■ 20. Section 21.4209 is amended by: 

■ a. In the introductory text of 

paragraph (a), removing ‘‘educational 

institutions’’ and adding, in its place, 

‘‘an educational institution, including 

for purposes of this section an 

organization or entity offering a 

licensing or certification test,’’. 

■ b. In paragraph (a)(1), removing 

‘‘Chapter 1606 of Title 10 U.S.C. or 

Chapters 30, 32, 34, 35, or 36 of Title 38 

U.S.C.’’ and adding, in its place, ‘‘10 

U.S.C. chapter 1606 or 38 U.S.C. chapter 

30, 32, 34, 35, or 36;’’. 

■ c. In paragraph (a)(2), removing the 

period at the end of the paragraph and 

adding, in its place, ‘‘; and’’ and 

removing the authority citation 

following paragraph (a)(2). 

■ d. Adding paragraph (a)(3). 

■ e. In paragraph (b) introductory text, 

paragraph (c), and paragraph (d) 

introductory text, removing ‘‘will’’ each 

place that it appears and adding, in its 

place, ‘‘must’’, and removing ‘‘school’’

and adding, in its place, ‘‘educational 

institution’’. 

■ f. In paragraph (b)(1), removing the 

period and adding, in its place, a 

semicolon, and removing ‘‘veterans’’

and adding, in its place, ‘‘veterans, 

reservists,’’. 

■ g. In paragraph (b)(2), removing the 

period and adding, in its place, a 

semicolon, and removing ‘‘veterans’’

and adding, in its place, ‘‘veterans, 

reservists,’’, and removing ‘‘school’’ and 

adding, in its place, ‘‘educational 

institution.’’

■ h. In paragraph (b)(3), removing 

‘‘veteran’s’’ and adding, in its place, 

‘‘veteran’s, reservist’s,’’, and removing 

the period and adding a semicolon in its 

place. 

■ i. In paragraph (b)(4), adding a 

semicolon at the end of the paragraph. 

■ j. In paragraph (b)(5), removing the 

period and adding ‘‘; and’’ in its place. 

■ k. Revising paragraph (b)(7). 

■ l. Revising paragraph (f). 

■ m. Adding an information collection 

approval parenthetical at the end of the 

section. 

The additions and revisions read as 

follows: 

§ 21.4209 Examination of records. 

(a) * * * 

(3) The records of other individuals 

who took a licensing or certification test 

that VA believes are necessary to 

ascertain whether the veterans and 

eligible persons taking such test were 

reimbursed the correct amount. 

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 

3241, 3689, 3690) 

(b) * * * 

(7) Records necessary to demonstrate 

compliance with the requirements of 

§ 21.4268. 

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 

3241, 3689, 3690) 

* * * * * 

(f) Retention of records. (1) Except as 

provided in paragraph (f)(2) of this 

section, an educational institution must 

keep records and accounts, including 

those pertaining to students not 

receiving benefits from VA, as described 

in this section, pertaining to each period 

of enrollment of a veteran, reservist, or 

eligible person. If those records are not 

available electronically, the paper 

records must be kept intact and in good 

condition at the educational institution 

for at least 3 years following the end of 

each enrollment period. If the records 

are stored electronically, the paper 

records may be stored at another site. 

The electronic records must be easily 

accessible at the educational institution 

for at least 3 years following the end of 

each enrollment period. 

(2) An organization or entity offering 

a licensing or certification test must 

keep records and accounts intact and in 

good condition that are needed to show 

that veterans and eligible persons have 

been paid correctly for taking licensing 

or certification tests. The organization or 

entity must keep those records, at a site 

mutually agreed on, for at least 3 years 

following the date of the test. 

(3) An educational institution will not 

be required under this section to retain 

records for longer than 3 years unless 

the educational institution receives from 

the Government Accountability Office 

or VA not later than 30 days before the 


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end of the 3-year period a written 

request for longer retention. 

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 

3241, 3689, 3690) 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

number 2900–0696.) 

■ 21. Section 21.4210 is amended by: 

■ a. Revising the section heading, the 

heading of paragraph (a), and 

paragraphs (a)(1) and (a)(2)(ii). 

■ b. In paragraph (b), designating the 

introductory text following the 

paragraph heading as paragraph (b)(1) 

introductory text; redesignating 

paragraphs (b)(1) and (b)(2) as 

paragraphs (b)(1)(i) and (b)(1)(ii), 

respectively; and adding a new 

paragraph (b)(2) immediately after the 

authority citation following paragraph 

(b)(1)(ii). 

■ c. Revising the authority citation 

following paragraph (c) and revising 

paragraph (d)(1) introductory text. 

■ d. Redesignating paragraphs (d)(1)(i), 

(d)(1)(ii), (d)(2), and (d)(3) as paragraphs 

(d)(2)(i), (d)(2)(ii), (d)(3), and (d)(4), 

respectively. 

■ e. Adding new paragraphs (d)(1)(i) 

and (d)(1)(ii); paragraph (d)(1)(iii); and a 

new paragraph (d)(2) introductory text. 

■ f. In newly redesignated paragraph 

(d)(2)(i), removing ‘‘and 21.4264’’ and 

adding, in its place, ‘‘21.4264, and 

21.4268’’. 

■ g. Revising the authority citation 

following paragraph (d). 

■ h. In paragraphs (e)(1) and (f), 

removing ‘‘facility’’ each place that it 

appears and adding, in its place, 

‘‘Regional Processing Office’’. 

■ i. Immediately after the authority 

citation following paragraph (e)(2), 

adding paragraph (e)(3). 

■ j. Revising paragraph (g). 

■ k. In paragraph (h)(1), removing 

‘‘course or courses’’ and adding, in its 

place, ‘‘course(s) or test(s)’’, and 

removing ‘‘facility’’ and adding, in its 

place, ‘‘Regional Processing Office’’. 

■ l. Adding paragraph (i). 

The revisions and additions read as 

follows: 

§ 21.4210 Suspension, discontinuance, 

and denial of educational assistance 

payments, and disapproval of enrollments 

or reenrollments for pursuit of approved 

courses. 

(a) Overview; explanation of terms 

used in §§ 21.4210 through 21.4216. (1) 

VA may pay educational assistance to a 

reservist under 10 U.S.C. chapter 1606 

for the reservist’s pursuit of a course 

approved in accordance with the 

provisions of 38 U.S.C. chapter 36. VA 

may pay educational assistance under 

38 U.S.C. chapter 32 or 35 to a veteran 

or eligible person for the individual’s 

pursuit of a course approved in 

accordance with the provisions of 38 

U.S.C. chapter 36 or if the individual 

has taken a licensing or certification test 

approved in accordance with the 

provisions of 38 U.S.C. chapter 36. VA 

may pay educational assistance under 

38 U.S.C. chapter 30 to a veteran or 

servicemember for the individual’s 

pursuit of a course approved in 

accordance with the provisions of 38 

U.S.C. chapter 36; if the individual has 

taken a licensing or certification test 

approved in accordance with the 

provisions of 38 U.S.C. chapter 36; or if 

the individual is entitled to be paid 

benefits (tuition assistance top-up) to 

meet all or a portion of an educational 

institution’s charges for education or 

training that the military department 

concerned has not covered under tuition 

assistance. Except for tuition assistance 

top-up, where courses do not need to be 

approved, a State approving agency 

designated by VA, or in some instances 

VA, approves the course or test for 

payment purposes. Notwithstanding 

such approval, VA, as provided in 

paragraphs (b), (c), and (d) of this 

section, may suspend, discontinue, or 

deny payment of benefits to any or all 

otherwise eligible individuals for 

pursuit of a course or training approved 

under 38 U.S.C. chapter 36, and for 

taking a licensing or certification test 

approved under 38 U.S.C. chapter 36. 

(2) * * * 

(ii) The term ‘‘educational institution’’

includes a training establishment, or 

organization or entity offering a 

licensing or certification test; and 

* * * * * 

(b) * * * 

(2) VA may deny payment of 

educational assistance to a specific 

individual for taking a licensing or 

certification test if, following an 

examination of the individual’s case, 

VA has credible evidence affecting that 

individual that—

(i) The test fails to meet any of the 

requirements of 38 U.S.C. 3689; or 

(ii) The organization or entity offering 

the individual’s test has violated any of 

the requirements of 38 U.S.C. 3689. 

(Authority: 38 U.S.C. 3689) 

(c) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689, 3690) 

(d) * * * 

(1) The Director of the VA Regional 

Processing Office of jurisdiction may: 

(i) Suspend payments of educational 

assistance to all veterans, 

servicemembers, reservists, or eligible 

persons already enrolled in a course; 

(ii) Disapprove all further enrollments 

or reenrollments of individuals seeking 

VA educational assistance for pursuit of 

the course (except for enrollments and 

reenrollments of servicemembers 

seeking to be paid benefits (tuition 

assistance top-up) to meet all or a 

portion of an educational institution’s 

charges for education or training that 

the military department concerned has 

not covered under tuition assistance); 

and 

(iii) Suspend payments of educational 

assistance to all veterans, 

servicemembers, or eligible persons who 

may take a licensing or certification test 

after a date that the Director may 

determine. 

(2) Except as provided in paragraphs 

(d)(3) and (i) of this section, the decision 

to act as described in paragraph (d)(1) of 

this section must be based on evidence 

of a substantial pattern of veterans, 

servicemembers, reservists, or eligible 

persons enrolled in the course or taking 

the test receiving educational assistance 

to which they are not entitled because: 

* * * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

512(a), 3034(a), 3241(a), 3680A(d), 3684, 

3685, 3689, 3690, 3696, 5301) 

(e) * * * 

(3) If VA receives a claim for 

educational assistance for the taking by 

an individual of a licensing or 

certification test, and the individual 

took the licensing or certification test 

during a period when payment for 

taking such test was suspended, the 

Director will inform the individual in 

writing of the fact of the suspension and 

the reasons why payments were 

suspended. 

(Authority: 38 U.S.C. 3689, 3690) 

* * * * * 

(g) Referral to the Committee on 

Educational Allowances. The Director of 

the VA Regional Processing Office of 

jurisdiction will refer the following 

matters to the Committee on 

Educational Allowances as provided in 

§ 21.4212: 

(1) A suspension under paragraph (d) 

of this section of payments of 

educational assistance to all veterans, 

servicemembers, reservists, or eligible 

persons already enrolled in a course; 

(2) A disapproval under paragraph (d) 

of this section of all further enrollments 

or reenrollments of individuals seeking 

VA educational assistance for pursuit of 

the course (except for enrollments and 

reenrollments of servicemembers 

seeking to be paid tuition assistance topup benefits to meet all or a portion of 

an educational institution’s charges for 

education or training that the military 


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department concerned has not covered 

under tuition assistance); and 

(3) A suspension under paragraph (d) 

of this section of payments of 

educational assistance to all veterans, 

servicemembers, or eligible persons who 

may take a licensing or certification test 

after a date that the Director has 

determined. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689, 3690) 

* * * * * 

(i) This section does not apply to 

disapproval of courses based on 

conflicts of interests. VA will 

disapprove courses when required by 

§ 21.4005(d) without applying the 

provisions of paragraphs (a) through (h) 

of this section. 

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 

3034(a), 3241, 3683(b)) 

■ 22. Section 21.4211 is amended by: 

■ a. Redesignating paragraph (b)(2) and 

the authority citation following 

paragraph (b)(2) as paragraph (b)(3). 

■ b. Revising the section heading, 

paragraphs (a) and (b)(1), and the 

authority citations following paragraphs 

(b), (c), (d), and (e). 

■ c. Adding a new paragraph (b)(2). 

■ d. In paragraphs (d), (e)(1), and 

(e)(2)(iii), removing ‘‘facility’’ each place 

that it appears and adding, in its place, 

‘‘Regional Processing Office’’. 

The revisions and addition read as 

follows: 

§ 21.4211 Composition, jurisdiction, and 

duties of Committee on Educational 

Allowances. 

(a) Authority. (1) 38 U.S.C. 3690 

authorizes VA to discontinue 

educational benefits to veterans, 

servicemembers, reservists, or eligible 

persons when VA finds that: 

(i) The program of education or course 

in which such individuals are enrolled 

fails to meet a requirement of 38 U.S.C. 

chapter 30, 32, 34, 35, or 36, or 10 

U.S.C. chapter 1606, or the regulations 

in this part; or 

(ii) An educational institution has 

violated any such statute or regulation, 

or fails to meet such a statutory or 

regulatory requirement. 

(2) This authority does not extend to 

enrollments and reenrollments of 

individuals seeking to be paid tuition 

assistance top-up benefits to meet all or 

a portion of an educational institution’s 

charges for education or training that 

the military department concerned has 

not covered under tuition assistance. 

(3) 38 U.S.C. 3689 and 3690 further 

authorize VA to deny payment to 

servicemembers or veterans for 

licensing or certification tests when VA 

finds that either the test or the 

organization or entity offering the test 

fails to meet a requirement of 38 U.S.C. 

3689 or the applicable regulations of 

this part. 

(4) Sections 21.4210 through 21.4216 

implement the authority discussed in 

paragraphs (a)(1) and (a)(3) of this 

section. 

(5) Each VA Regional Processing 

Office shall have a Committee on 

Educational Allowances. For the 

purposes of this section, the Manila 

Regional Office is considered the VA 

Regional Processing Office of 

jurisdiction for educational institutions 

located in the Philippines. The 

Committee’s findings of fact and 

recommendations will be provided to 

the Director of the VA Regional 

Processing Office. 

(6) The Secretary of Veterans Affairs 

delegates to each Director of a VA 

Regional Processing Office the authority 

to suspend or discontinue payment of 

educational benefits, to disapprove 

enrollments or reenrollments, or to deny 

payment of benefits for tests. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

512(a); 3034(a), 3241(a), 3689(d), 3690) 

(b) * * * 

(1) The Committee on Educational 

Allowances is established to assist the 

Director of the VA Regional Processing 

Office of jurisdiction in deciding in a 

specific case whether—

(i) Educational assistance should be 

discontinued to all individuals enrolled 

in any course or courses an educational 

institution offers; and 

(ii) If appropriate, whether approval 

of all further enrollments or 

reenrollments in the course or courses 

an educational institution offers should 

be denied to veterans, servicemembers, 

reservists, or other eligible persons 

pursuing those courses under programs 

VA administers; or 

(iii) Payment should be denied to all 

servicemembers and veterans for taking 

a specific licensing or certification test. 

(2) A Director’s decision described in 

paragraph (b)(1) of this section must be 

based on a finding that the educational 

institution is not meeting, or has 

violated, a requirement of 38 U.S.C. 

chapter 30, 32, 34, 35, or 36, or 10 

U.S.C. chapter 1606, or the regulations 

in this part. 

* * * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(c) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(d) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(e) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

■ 23. Section 21.4212 is amended by: 

■ a. In paragraph (a)(5), removing 

‘‘discontinued and approval of new 

enrollments or reenrollments denied.’’

and adding, in its place, ‘‘discontinued; 

approval of new enrollments should be 

denied; and/or payment to individuals 

for licensing or certification tests should 

be denied, as appropriate.’’

■ b. Revising the authority citation. 

■ c. In paragraphs (a) introductory text 

and (b)(1)(iii), removing ‘‘facility’’ each 

place that it appears and adding, in its 

place, ‘‘Regional Processing Office’’. 

The revision reads as follows: 

§ 21.4212 Referral to Committee on 

Educational Allowances. 

* * * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

■ 24. In § 21.4213, the authority citation 

is revised to read as follows: 

§ 21.4213 Notice of hearing by Committee 

on Educational Allowances. 

* * * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

■ 25. Section 21.4214 is amended in 

paragraphs (b), (e), (k), (o), and (p) by 

removing ‘‘facility’’ each place that it 

appears and adding, in its place, 

‘‘Regional Processing Office’’, and by 

revising the authority citations for 

paragraphs (a) through (p) to read as 

follows: 

§ 21.4214 Hearing rules and procedures 

for Committee on Educational Allowances. 

(a) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(b) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(c) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(d) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(e) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(f) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(g) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 


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(h) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(i) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(j) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(k) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(l) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(m) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(n) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(o) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(p) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

■ 26. Section 21.4215 is amended in 

paragraphs (b)(1) introductory text, (c), 

(d), (e)(1), (e)(2) introductory text, and 

(e)(3) by removing ‘‘facility’’ each place 

that it appears and adding, in its place, 

‘‘Regional Processing Office’’, and by 

revising the section heading, paragraph 

(a), and the authority citations for 

paragraphs (b), (c), (d), and (e) to read 

as follows: 

§ 21.4215 Decision of Director of VA 

Regional Processing Office of jurisdiction. 

(a) Decision. The Director of the VA 

Regional Processing Office of 

jurisdiction will render a written 

decision on the issue or issues of 

discontinuance or denial that were the 

subject of the Committee on Educational 

Allowances proceedings. 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(b) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(c) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(d) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

(e) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

■ 27. Section 21.4216 is amended in 

paragraph (c) by removing ‘‘facility’’ and 

adding, in its place, ‘‘Regional 

Processing Office’’, and by revising the 

section heading, paragraph (a), and the 

authority citation at the end of 

paragraph (c) to read as follows: 

§ 21.4216 Review of decision of Director of 

VA Regional Processing Office of 

jurisdiction. 

(a) Decision is subject to review by the 

Director, Education Service. At the 

request of the educational institution 

the Director, Education Service will 

review a decision of a Director of a VA 

Regional Processing Office of 

jurisdiction to discontinue payments; to 

disapprove new enrollments or 

reenrollments; or to deny payment of 

benefits for licensing or certification 

tests. This review will be based on the 

evidence of record when the Director of 

the VA Regional Processing Office of 

jurisdiction made that decision. It will 

not be de novo in nature and no hearing 

on the issue will be held. When 

reviewing a decision to deny payment 

for licensing or certification tests, the 

Director, Education Service may seek 

the advice of the Professional 

Certification and Licensure Advisory 

Committee established under 38 U.S.C. 

3689(e). 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), (e), 3690) 

* * * * * 

(c) * * * 

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 

3034(a), 3241(a), 3689(d), 3690) 

■ 28. Section 21.4234 is amended by: 

■ a. In paragraph (a)(1), removing 

‘‘educational professional’’ and adding, 

in its place, ‘‘educational, 

professional,’’. 

■ b. In paragraph (a)(2) introductory 

text, removing the period and adding a 

colon in its place. 

■ c. In paragraph (a)(2)(i), removing the 

period and adding a semicolon in its 

place. 

■ d. In paragraph (a)(2)(ii), removing the 

comma at the end of the paragraph and 

adding a semicolon in its place. 

■ e. In paragraph (a)(2)(iii), removing 

‘‘program, or’’ and adding, in its place, 

‘‘program;’’. 

■ f. In paragraph (a)(2)(iv), removing the 

period and adding ‘‘; or’’. 

■ g. Adding paragraph (a)(2)(v), an 

authority citation following paragraph 

(e), and an information collection 

approval parenthetical at the end of the 

section. 

The additions read as follows: 

§ 21.4234 Change of program. 

(a) * * * 

(2) * * * 

(v) An enrollment or reenrollment of 

a servicemember seeking to be paid 

tuition assistance top-up benefits to 

meet all or a portion of an educational 

institution’s charges for education or 

training that the military department 

concerned has not covered under tuition 

assistance. 

(Authority: 38 U.S.C. 3691) 

* * * * * 

(e) * * * 

(Authority: 38 U.S.C. 3691) 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

numbers 2900–0074 and 2900–0099.) 

■ 29. Section 21.4250 is amended by: 

■ a. Revising the section heading and 

paragraphs (a) and (b)(1). 

■ b. In paragraph (b)(2), removing 

‘‘course’’ and adding, in its place, 

‘‘course or licensing or certification 

test’’. 

■ c. Removing the authority citation 

following paragraph (c)(2)(ii). 

■ d. In paragraph (c)(2)(iv), removing 

‘‘36; and’’ and adding, in its place, 

‘‘36;’’. 

■ e. In paragraph (c)(2)(v), removing the 

period and adding ‘‘; and’’ in its place. 

■ f. Removing the authority citation at 

the end of paragraph (c)(2)(v). 

■ g. Immediately after paragraph 

(c)(2)(v), adding paragraph (c)(2)(vi). 

■ h. Revising the cross reference at the 

end of the section. 

■ i. Immediately following the cross 

reference at the end of the section, 

adding an information collection 

approval parenthetical. 

The revisions and addition read as 

follows: 

§ 21.4250 Course and licensing and 

certification test approval; jurisdiction and 

notices. 

(a) General. The statements made in 

this paragraph are subject to exceptions 

found in paragraph (c) of this section. 

(1) If an educational institution offers 

a resident course in a State, only the 

State approving agency for the State 

where the course is being offered may 

approve the course for VA training. If 

the State approving agency chooses to 

approve a resident course (other than a 

flight course) not leading to a standard 

college degree, it must also approve the 

class schedules of that course. 

(2) If an educational institution with 

a main campus in a State offers a 

resident course not located in a State, 

only the State approving agency for the 

State where the educational institution’s 

main campus is located may approve 

the course for VA training. If the State 


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approving agency chooses to approve a 

resident course (other than a flight 

course) not leading to a standard college 

degree, it must also approve the class 

schedules of that course. 

(3) If an educational institution offers 

a course by independent study or by 

correspondence, only the State 

approving agency for the State where 

the educational institution’s main 

campus is located may approve the 

course for VA training. 

(4) If a training establishment offers a 

program of apprenticeship or other onjob training, only the State approving 

agency for the State where the training 

will take place may approve the course 

for VA training. 

(5) Except as provided in paragraph 

(a)(6)(ii) of this section, if a State or 

political subdivision of a State offers a 

licensing test, only the State approving 

agency for the State where the license 

will be valid may approve the test for 

VA payment. 

(6)(i) If an organization or entity offers 

a licensing or certification test and 

applies for approval of that test, only the 

State approving agency for the State 

where the organization or entity has its 

headquarters may approve the test and 

the organization or entity offering the 

test for VA payment. This approval will 

be valid wherever the test is given. 

(ii) If the organization or entity 

offering a licensing or certification test 

does not apply for approval, and a State 

or political subdivision of a State 

requires that an individual take the test 

in order to obtain a license, the State 

approving agency for the State where 

the license will be valid may approve 

the test for VA payment. This approval 

will be valid for the purpose of VA 

payment only if the veteran takes the 

test in the State or political subdivision 

of the State where the license is valid. 

(7) A course approved under 38 

U.S.C. chapter 36 will be deemed to be 

approved for purposes of 38 U.S.C. 

chapter 35. 

(8) Any course that was approved 

under 38 U.S.C. chapter 33 (as in effect 

before February 1, 1965), or under 38 

U.S.C. chapter 35 before March 3, 1966, 

and was not or is not disapproved for 

failure to meet any of the requirements 

of the applicable chapters, will be 

deemed to be approved for purposes of 

38 U.S.C. chapter 36. 

(9) VA may make tuition assistance 

top-up payments of educational 

assistance to an individual to meet all 

or a portion of an educational 

institution’s charges for education or 

training that the military department 

concerned has not covered under tuition 

assistance, even though a State 

approving agency has not approved the 

course in which the individual was 

enrolled. 

(Authority: 38 U.S.C. 3014(b), 3670, 3672(a)) 

(b) * * * 

(1) Notice of approval. (i) Each State 

approving agency must provide to VA: 

(A) A list of schools specifying which 

courses it has approved; 

(B) A list of licensing and certification 

tests and organizations and entities 

offering these tests that it has approved; 

and 

(C) Any other information that it and 

VA may determine to be necessary. 

(ii) The lists and information must be 

provided on paper or electronically as 

VA may require. 

* * * * * 

(c) * * * 

(2) * * * 

(vi) Any licensing or certification test 

and any organization or entity offering 

such a test if—

(A) The organization or entity is an 

agency of the Federal government; 

(B) The headquarters of the 

organization or entity offering the test is 

not located in a State; or 

(C) The State approving agency that 

would, under paragraph (a)(5) or (a)(6) 

of this section, have approval 

jurisdiction for the test has declined to 

perform the approval function for 

licensing or certification tests and the 

organizations or entities offering these 

tests. 

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 

3241, 3476, 3523, 3672, 3673, 3689) 

Cross Reference: Designation. See § 21.4150. 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

number 2900–0051.) 

■ 30. Section 21.4251 is amended by 

adding introductory text to read as 

follows: 

§ 21.4251 Minimum period of operation 

requirement for educational institutions. 

The provisions of this section do not 

apply to licensing or certification tests 

or to the organizations or entities 

offering those tests. For information on 

the minimum period of operation 

requirement that applies to licensing or 

certification tests, see § 21.4268. 

* * * * * 

■ 31. Section 21.4252 is amended by: 

■ a. Revising the section heading. 

■ b. Revising the heading of paragraph 

(h) and adding introductory text. 

■ c. Revising paragraph (h)(1). 

■ d. Redesignating paragraph (h)(2) as 

paragraph (h)(3) and revising the 

introductory text. 

■ e. Adding new paragraph (h)(2). 

■ f. Revising the authority citation 

following paragraph (h)(3). 

■ g. Adding an information collection 

approval parenthetical at the end of the 

section. 

The revisions and additions read as 

follows: 

§ 21.4252 Courses precluded; erroneous, 

deceptive, or misleading practices. 

* * * * * 

(h) Erroneous, deceptive, or 

misleading practices. For the purposes 

of this paragraph, ‘‘educational 

institution’’ includes an organization or 

entity offering licensing or certification 

tests. 

(1) If an educational institution uses 

advertising, sales, enrollment practices, 

or candidate handbooks that are 

erroneous, deceptive, or misleading by 

actual statement, omission, or 

intimation, VA will not approve: 

(i) An enrollment in any course such 

an educational institution offers; and 

(ii) Payment of educational assistance 

as reimbursement to a veteran or eligible 

person for taking a licensing or 

certification test that the educational 

institution offers. 

(2) VA will use the services and 

facilities of the Federal Trade 

Commission, where appropriate, under 

an agreement: 

(i) To carry out investigations; and 

(ii) To decide whether an educational 

institution uses advertising, sales, or 

enrollment practices, or candidate 

handbooks, described in paragraph 

(h)(1) of this section. 

(3) Any educational institution 

offering courses approved for the 

enrollment of veterans, reservists, and/ 

or eligible persons, or offering licensing 

or certification tests approved for 

payment of educational assistance as 

reimbursement to veterans or eligible 

persons who take the tests, must 

maintain a complete record of all 

advertising, sales materials, enrollment 

materials, or candidate handbooks (and 

copies of each) that the educational 

institution or its agents have used 

during the preceding 12-month period. 

The State approving agency and VA 

may inspect this record. The materials 

in this record shall include but are not 

limited to: 

* * * * * 

(Authority: 38 U.S.C. 3689, 3696) 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

numbers 2900–0073, 2900–0156, and 2900–

0682.) 

■ 32. Section 21.4258 is amended by: 

■ a. Revising paragraphs (a) and (b). 

■ b. Removing paragraph (c). 

■ c. Redesignating paragraph (d) as new 

paragraph (c). 


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■ d. In newly redesignated paragraph 

(c)(2)(ii), removing ‘‘paragraph (d)(1)’’

and adding, in its place, ‘‘paragraph 

(c)(1)’’

■ e. In newly redesignated paragraph 

(c)(3), removing ‘‘paragraph (d)(2)’’ and 

adding, in its place, ‘‘paragraph (c)(2)’’. 

■ f. At the end of the section, revising 

the authority citation and adding an 

information collection approval 

parenthetical. 

The revisions and addition read as 

follows: 

§ 21.4258 Notice of approval. 

(a) General; letter of approval and 

other notice of approval requirements. 

The State approving agency, upon 

determining that an educational 

institution, training establishment, or 

organization or entity offering a 

licensing or certification test has 

complied with all the requirements for 

approval will—

(1) Notify by letter, as described in 

paragraph (b) of this section, each such 

educational institution, training 

establishment, or organization or entity 

offering a licensing or certification test; 

and 

(2) Furnish VA an official copy of the 

letter, any attachments, and any 

subsequent amendments. In addition, 

the State approving agency will furnish 

VA a copy of each such—

(i) Educational institution’s approved 

catalog or bulletin; 

(ii) Training establishment’s 

application requesting approval; or 

(iii) Organization’s or entity’s 

candidate handbook. 

(b) Contents of letter of approval. The 

letter of approval will include the 

following: 

(1) For an educational institution: (i) 

Date of the letter and effective date of 

approval of courses; 

(ii) Proper address and name of the 

educational institution; 

(iii) Authority for approval and 

conditions of approval, referring 

specifically to the approved catalog or 

bulletin; 

(iv) Name of each course approved, 

except that a State approving agency, in 

lieu of listing the name of each course 

approved at an institution of higher 

learning, may identify approved courses 

by reference to page numbers in the 

school catalog or bulletin; 

(v) Where applicable, enrollment 

limitations, such as maximum number 

of students authorized and studentteacher ratio; 

(vi) Signature of responsible official of 

State approving agency; and 

(vii) Such other fair and reasonable 

provisions as are considered necessary 

by the appropriate State approving 

agency. 

(2) For a training establishment: (i) 

Date of the letter and effective date of 

approval of the apprentice or other onthe-job training; 

(ii) Proper address and name of the 

training establishment; 

(iii) Authority for approval and 

conditions of approval; 

(iv) Name of the approved program of 

apprenticeship or other on-the-job 

training; 

(v) Where applicable, enrollment 

limitations, such as maximum number 

of trainees authorized; 

(vi) Such other fair and reasonable 

provisions as are considered necessary 

by the appropriate State approving 

agency; and 

(vii) Signature of responsible official 

of State approving agency. 

(3) For an organization or entity 

offering a licensing or certification test: 

(i) Date of the letter and effective date 

of approval of test(s); 

(ii) Proper name of the organization or 

entity offering the licensing or 

certification test(s); 

(iii) Name of each test approved 

indicating whether it is a licensing test 

or certification test; 

(iv) Where applicable, enrollment 

limitations such as maximum numbers 

authorized and test taker-test proctor 

ratio; and 

(v) Signature of responsible official of 

State approving agency. 

(Authority: 38 U.S.C. 3672, 3678, 3689) 

* * * * * 

(20 U.S.C. 1681 et seq.; 29 U.S.C. 794; 38 

U.S.C. 501, 3671; 42 U.S.C. 2000d, 6101 et 

seq.; 38 CFR parts 18, 18a, 18b) 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

number 2900–0051.) 

■ 33. Section 21.4259 is amended by: 

■ a. In paragraph (a) introductory text, 

removing ‘‘course’’ and adding, in its 

place, ‘‘course or licensing or 

certification test’’. 

■ b. In paragraph (a)(1), removing 

‘‘approval of the course for new 

enrollments’’ and adding, in its place, 

‘‘approval of a course for new 

enrollments, or approval of a licensing 

or certification test,’’; and removing 

‘‘course fails’’ and adding, in its place, 

‘‘course or licensing or certification test 

fails’’. 

■ c. In paragraph (a)(2), removing 

‘‘course’’ and adding, in its place, 

‘‘course or licensing or certification 

test’’. 

■ d. In paragraph (a)(3), removing 

‘‘school’’ and adding, in its place, 

‘‘educational institution’’. 

■ e. Revising paragraph (b). 

■ f. In paragraph (c), removing 

‘‘courses’’ and adding, in its place, 

‘‘courses or licensing or certification 

tests’’. 

■ g. In paragraph (d), removing 

‘‘Chapter 31.’’ and adding, in its place, 

‘‘38 U.S.C. chapter 31.’’. 

■ h. At the end of the section, revising 

the authority citation and adding an 

information collection approval 

parenthetical. 

The revisions and additions read as 

follows: 

§ 21.4259 Suspension or disapproval. 

* * * * * 

(b) Each State approving agency will 

immediately notify VA of each course, 

or licensing or certification test, that it 

has suspended or disapproved. 

* * * * * 

(Authority: 38 U.S.C. 3679, 3689) 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

number 2900–0051.) 

■ 34. Section 21.4266 is amended by 

revising the cross reference at the end of 

the section to read as follows: 

§ 21.4266 Courses offered at subsidiary 

branches or extensions. 

* * * * * 

Cross Reference: Minimum period of 

operation requirement for educational 

institutions. See § 21.4251. 

■ 35. Section 21.4268 is added to read 

as follows: 

§ 21.4268 Approval of licensing and 

certification tests. 

(a) Authority to approve licensing and 

certification tests. (1) Except for 

approval of the licensing and 

certification tests and the organizations 

or entities offering these tests that, as 

provided in § 21.4250(c)(2), are VA’s 

responsibility, the Secretary of Veterans 

Affairs delegates to each State approving 

agency the authority, within the 

respective State approving agency’s 

jurisdiction provided in § 21.4250(a), to 

approve licensing and certification tests 

and to approve the organizations or 

entities offering licensing and 

certification tests. 

(2) The Secretary of Veterans Affairs 

delegates to the Under Secretary for 

Benefits, and to personnel the Under 

Secretary for Benefits may designate 

within the Education Service of the 

Veterans Benefits Administration, the 

authority to approve the licensing and 

certification tests and the organizations 

or entities offering these tests that, as 

provided in § 21.4250(c)(2)(vi), are VA’s 

responsibility. 

(Authority: 38 U.S.C. 512(a), 3689(a)(2)) 


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(b) Approval of tests. (1) If an 

organization or entity wants a licensing 

or certification test that it offers to be 

approved for payment of educational 

assistance, it must apply for approval to 

the State approving agency having 

jurisdiction over the locality where the 

organization or entity has its 

headquarters. The application must be 

in the form the State approving agency 

requires. 

(2) In order to be approved for 

payment of educational assistance to 

veterans and eligible persons, a 

licensing or certification test must meet 

the requirements of paragraph (b) of this 

section, and the organization or entity 

offering the test must meet the 

requirements of paragraph (c) of this 

section and, if appropriate, the 

requirements of paragraph (d) of this 

section. 

(i) The State approving agency may 

approve a licensing or certification test 

only if—

(A) The test is required under Federal, 

State, or local law or regulation for an 

individual to enter into, maintain, or 

advance in employment in a 

predetermined and identified vocation 

or profession; or 

(B) The State approving agency 

decides that the test is generally 

accepted, in accordance with relevant 

government, business, or industry 

standards, employment policies, or 

hiring practices, as attesting to a level of 

knowledge or skill required to qualify to 

enter into, maintain, or advance in 

employment in a predetermined and 

identified vocation or profession. 

(ii) If a State or political subdivision 

of a State offers a licensing or 

certification test, the State approving 

agency will deem the test to have met 

the requirements of paragraph (b) of this 

section. 

(3) In considering whether the test is 

generally accepted, a State approving 

agency may consider the following: 

(i) The nature and number of the 

entities that recognize the certificate 

awarded to candidates who pass the 

test; 

(ii) The degree to which employers in 

the relevant industry accept the 

certification test; 

(iii) Whether major employers in an 

industry require that their employees 

obtain the certificate awarded to 

candidates who pass the test; 

(iv) The percentage of people 

employed in the vocation or profession 

who have taken the test and obtained 

the certificate; or 

(v) Any other reasonable criterion that 

the State approving agency believes will 

clarify whether the test is generally 

accepted. 

(4) Generally, if a State approving 

agency approves a certification test, VA 

will consider that the test is approved 

for any veteran or eligible person even 

if he or she takes the test at a location 

outside the State where the organization 

or entity offering the test has its 

headquarters. However, a certification 

test approval is valid only in the State 

where the State approving agency has 

jurisdiction if—

(i) A State licensing agency recognizes 

the certification test as meeting a 

requirement for a license and has sought 

approval for that test; and 

(ii) The State approving agency for the 

State where the licensing agency is 

located approves that test. 

(Authority: 38 U.S.C. 3689) 

(c) Approval of organizations or 

entities offering licensing or certification 

tests. An organization or entity must 

meet the requirements of this paragraph 

and, if a nongovernmental organization, 

of paragraph (d) of this section, in order 

for the State approving agency to 

approve a licensing or certification test 

that the organization or entity offers for 

payment of educational assistance to 

veterans and eligible persons who take 

the test. The organization or entity 

must—

(1) Maintain appropriate records with 

respect to all candidates who take the 

test for a period of not less than three 

years from the date the organization or 

entity administers the test to the 

candidates; 

(2) Promptly issue notice of the 

results of the test to the candidate for 

the license or certificate; 

(3) Have a process to review 

complaints submitted against the 

organization or entity with respect to 

the test or the process for obtaining a 

license or certificate required for a 

vocation or profession; 

(4) Give to the State approving agency 

the following information: 

(i) A description of the licensing or 

certification test that the organization or 

entity offers, including the purpose of 

the test, the vocational, professional, 

governmental, and other entities that 

recognize the test, and the license or 

certificate issued upon passing the test; 

(ii) The requirements to take the test, 

including the amount of the fee charged 

for the test and any prerequisite 

education, training, skills, or other 

certification; and 

(iii) The period for which the license 

or certificate is awarded is valid, and 

the requirements for maintaining or 

renewing the license or certificate; and 

(5) Agree to give the following 

information to VA at VA’s request: 

(i) The amount of the fee a candidate 

pays to take a test; 

(ii) The results of any test a candidate 

takes; and 

(iii) Personal identifying information 

of any candidate who applies for 

reimbursement from VA for a test. 

(Authority: 38 U.S.C. 3689(c)) 

(d) Approval of nongovernmental 

organizations or entities offering 

certification tests. (1) In addition to 

complying with the requirements of 

paragraph (c) of this section, a 

nongovernmental organization or entity 

must meet the requirements of 

paragraph (d) of this section before a 

certification test it offers can be 

approved for payment of educational 

assistance to veterans and eligible 

persons who take the test. Except as 

provided in paragraphs (d)(3) and (d)(4) 

of this section, the organization or 

entity—

(i) Certifies to the State approving 

agency that the licensing or certification 

test offered by the organization or entity 

is generally accepted, in accordance 

with relevant government, business, or 

industry standards, employment 

policies, or hiring practices, as attesting 

to a level of knowledge or skill required 

to qualify to enter into, maintain, or 

advance in employment in a 

predetermined and identified vocation 

or profession; 

(ii) Is licensed, chartered, or 

incorporated in a State and has offered 

the test for a minimum of two years 

before the date on which the 

organization or entity first submits to 

the State approving agency an 

application for approval under this 

section; 

(iii) Employs, or consults with, 

individuals with expertise or substantial 

experience with respect to all areas of 

knowledge or skill that are measured by 

the test and that are required for the 

license or certificate issued; and 

(iv) Has no direct financial interest 

in—

(A) The outcome of the test; or 

(B) An organization that provides the 

education or training of candidates for 

licenses or certificates required for a 

vocation or profession. 

(2) At the request of the State 

approving agency, the organization or 

entity seeking approval for a licensing 

or certification test must give such 

information to the State approving 

agency as the State approving agency 

decides is necessary to perform an 

assessment of—

(i) The test the organization or entity 

conducts as compared to the level of 

knowledge or skills that a license or 

certificate attests; and 

(ii) The applicability of the test over 

such periods of time as the State 


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approving agency decides is 

appropriate. 

(3) The provisions of paragraph 

(d)(1)(ii) of this section will not prevent 

the approval of a test if the organization 

or entity has offered a reasonably related 

test for at least two years. 

(4) The provisions of paragraph 

(d)(1)(iv) of this section will not prevent 

the approval of a test if the organization 

or entity—

(i) Offers a sample test or preparatory 

materials to a candidate for the test but 

does not otherwise provide preparatory 

education or training to the candidate; 

or 

(ii) Has a financial interest in an 

organization that provides preparatory 

education or training of a candidate for 

a test, but that test is advantageous in 

but not required for practicing a 

vocation or profession. 

(Authority: 38 U.S.C. 3689(c)) 

(e) Notice of approval and withdrawal 

of approval. The State approving agency 

must provide notice of an approval of a 

test as required in § 21.4250(b). If the 

State approving agency wishes to 

withdraw approval of a test, it must 

follow the provisions of § 21.4259. 

(Authority: 38 U.S.C. 3689(d)) 

(f) A decision to disapprove a test or 

an organization or entity offering a test 

may be reviewed. (1) If an organization 

or entity offering a test disagrees with a 

State approving agency’s decision to 

disapprove a test or to disapprove the 

organization or entity offering the test, 

it may seek a review of the decision 

from the Director, Education Service. If 

the Director, Education Service has 

acted as the State approving agency, the 

organization or entity may seek a review 

of the decision from the Under Secretary 

for Benefits. 

(2) The organization or entity must 

make its request for a review in writing 

to the State approving agency. The State 

approving agency must receive the 

request within 90 days of the date of the 

notice to the organization or entity that 

the test or the organization or entity is 

disapproved. 

(3) The review will be based on the 

evidence of record at the time the State 

approving agency made its initial 

decision. It will not be de novo in 

character. 

(4) The Director, Education Service or 

the Under Secretary for Benefits may 

seek the advice of the Professional 

Certification and Licensure Advisory 

Committee, established under 38 U.S.C. 

3689(e), as to whether the State 

approving agency’s decision should be 

reversed. 

(5) The decision of the Director, 

Education Service or the Under 

Secretary for Benefits is the final 

administrative decision. It will not be 

subject to further administrative review. 

(Authority: 38 U.S.C. 3689) 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

number 2900–0697.) 

■ 36. In § 21.4272, paragraph (a)(5)(iii) 

is amended by removing ‘‘§ 21.4252(1), 

(2) or (3).’’ and adding, in its place, 

‘‘§ 21.4252(l)(1), (2), or (3).’’. 

Subpart G—Post-Vietnam Era 

Veterans’ Educational Assistance 

Under 38 U.S.C. Chapter 32 

■ 37. The authority citation for part 21, 

subpart G is revised to read as follows: 

Authority: 38 U.S.C. 501(a), chs. 32, 36, 

and as noted in specific sections. 

■ 38. Section 21.5021 is amended by: 

■ a. Revising the introductory text and 

paragraphs (k) and (p). 

■ b. In paragraph (q)(3), removing ‘‘636; 

or’’ and adding, in its place, ‘‘636;’’. 

■ c. In paragraph (q)(4), removing ‘‘onjob training approved as provided in 

§§ 21.4261 or 21.4262 of this part as 

appropriate.’’ and adding, in its place, 

‘‘training on-the-job approved as 

provided in § 21.4261 or § 21.4262 as 

appropriate; or’’. 

■ d. Adding paragraph (q)(5) 

immediately before the authority 

citation for paragraph (q). 

■ e. Revising the authority citation for 

paragraph (q). 

■ f. Adding paragraphs (z), (aa), and 

(bb). 

The revisions and additions read as 

follows: 

§ 21.5021 Definitions. 

For the purposes of subpart G and 

payment of benefits under 38 U.S.C. 

chapter 32, the following definitions 

apply (see also §§ 21.1029 and 21.4200): 

* * * * * 

(k) Benefit payment. The term benefit 

payment means any educational 

assistance allowance paid under 38 

U.S.C. chapter 32 to a veteran for 

pursuit of a program of education 

during a benefit period. 

(Authority: 38 U.S.C. 3231, 3232, 3452(b), 

3689) 

* * * * * 

(p) Training establishment. The term 

training establishment means any 

establishment providing apprentice or 

other training on-the-job, including 

those under the supervision of a college, 

university, any State department of 

education, any State apprenticeship 

agency, any State board of vocational 

education, any joint apprenticeship 

committee, the Bureau of 

Apprenticeship and Training 

established in accordance with 29 

U.S.C. chapter 4C, or any agency of the 

Federal government authorized to 

supervise such training. 

(Authority: 38 U.S.C. 3202, 3452(e)) 

(q) * * * 

(5) A licensing or certification test, the 

passing of which demonstrates an 

individual’s possession of the 

knowledge or skill required to enter 

into, maintain, or advance in 

employment in a predetermined and 

identified vocation or profession, 

provided that VA or a State approving 

agency has approved the test and the 

licensing or credentialing organization 

or entity that offers the test as provided 

in 38 U.S.C. 3689. 

(Authority: 38 U.S.C. 3202(2), 3452(b), 3689) 

* * * * * 

(z) Certification test. The term 

certification test means a test an 

individual must pass in order to receive 

a certificate that provides an affirmation 

of an individual’s qualifications in a 

specified occupation. 

(Authority: 38 U.S.C. 3202, 3452(b), 

3501(a)(5), 3689) 

(aa) Licensing test. The term licensing 

test means a test offered by a State, 

local, or Federal agency, the passing of 

which is a means, or part of a means, 

to obtain a license. That license must be 

required by law in order for the 

individual to practice an occupation in 

the political jurisdiction of the agency 

offering the test. 

(Authority: 38 U.S.C. 3202, 3452(b), 3689) 

(bb) Organization or entity offering a 

licensing or certification test. (1) The 

term organization or entity offering a 

licensing or certification test means: 

(i) An organization or entity that 

causes a licensing test to be given and 

that will issue a license to an individual 

who passes the test; 

(ii) An organization or entity that 

causes a certification test to be given 

and that will issue a certificate to an 

individual who passes the test; or 

(iii) An organization or entity that 

administers a licensing or certification 

test for the organization or entity that 

will issue a license or certificate, 

respectively, to an individual who 

passes the test, provided that the 

administering organization or entity can 

provide all required information and 

certifications under § 21.4268 to the 

State approving agency and to VA. 

(2) This term does not include: 

(i) An organization or entity that 

develops and/or proctors a licensing or 

certification test, but does not issue the 

license or certificate; 


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(ii) An organization or entity that 

administers a test but does not issue the 

license or certificate, if that 

administering organization or entity 

cannot provide all required information 

and certifications under § 21.4268 to the 

State approving agency and to VA. 

(Authority: 38 U.S.C. 3202, 3452(b), 3689) 

■ 39. Section 21.5131 is revised to read 

as follows: 

§ 21.5131 Educational assistance 

allowance. 

(a) General. Statements in this section 

concerning payments of educational 

assistance allowance assume that the 

veteran or servicemember: 

(1) Is eligible for educational 

assistance under 38 U.S.C. chapter 32; 

(2) Has remaining entitlement; and 

(3) Has not passed the 10-year 

delimiting date and any applicable 

extension to that date. 

(Authority: 38 U.S.C. 3241) 

(b) Payment of educational assistance 

allowance for pursuit of programs of 

education and other courses. (1) VA 

will pay educational assistance 

allowance at the rate specified in 

§ 21.5136 or § 21.5138 while the veteran 

or servicemember is pursuing: 

(i) An approved program of education; 

(ii) A refresher or deficiency course; 

or 

(iii) Special education or training 

which is necessary to enable the veteran 

or servicemember to pursue an 

approved program of education. 

(2) Except as provided in paragraph 

(c) of this section, VA will not pay 

educational assistance allowance for 

pursuit of any course unless the course 

is: 

(i) Part of the veteran’s or 

servicemember’s program of education; 

(ii) A refresher or deficiency course; 

or 

(iii) Special education or training 

which is necessary to enable the veteran 

or servicemember to pursue an 

approved program of education. 

(3) VA may withhold a payment until 

it receives verification or certification of 

the veteran’s or servicemember’s 

continued enrollment and adjusts 

accordingly the veteran’s or 

servicemember’s account. 

(Authority: 38 U.S.C. 3241) 

(c) Payment for taking a licensing or 

certification test. VA will pay 

educational assistance allowance to an 

eligible veteran or servicemember who 

takes an approved licensing or 

certification test and applies, in 

accordance with the provisions of 

§ 21.1030(b), for that assistance. VA will 

not pay educational assistance for a 

licensing or certification test that 

neither a State approving agency nor VA 

has approved. 

(Authority: 38 U.S.C. 3689) 

■ 40. Section 21.5133 is amended by 

revising the introductory text, paragraph 

(a) introductory text, and authority 

citation to read as follows: 

§ 21.5133 Certifications and release of 

payments. 

A veteran or servicemember must be 

pursuing a program of education in 

order to receive payment of educational 

assistance allowance under 38 U.S.C. 

chapter 32. To ensure that this is the 

case, the provisions of this section must 

be met when a veteran or 

servicemember is seeking such 

payment. 

(a) General. VA will pay educational 

assistance to a veteran or servicemember 

(other than one pursuing a program of 

apprenticeship, other on-job training, or 

a correspondence course; one seeking 

reimbursement for taking an approved 

licensing or certification test; or one 

who qualifies for an advance payment) 

only after: 

* * * * * 

(38 U.S.C. 3680(g), 3689) 

* * * * * 

■ 41. Section 21.5137 is added to read 

as follows: 

§ 21.5137 Benefit payments and charges 

against entitlement for taking an approved 

licensing or certification test. 

(a) Benefit payments. The amount of 

educational assistance allowance VA 

will pay to a veteran or servicemember 

for taking an approved licensing or 

certification test, if the veteran or 

servicemember is entitled to receive 

such benefit payments, will be the 

lowest of the following: 

(1) The fee the organization or entity 

offering the test charges for taking the 

test; 

(2) $2,000; or 

(3) The total remaining amount of the 

veteran’s or servicemember’s 

contributions to the fund and the 

contributions the Secretary of Defense 

has made to the fund on behalf of the 

veteran or servicemember. 

(Authority: 38 U.S.C. 3222, 3231, 3232(c), 

3452(b), 3689) 

(b) Charge against entitlement. For 

educational assistance allowance paid 

for taking an approved licensing or 

certification test, VA will make a charge 

against the veteran’s or servicemember’s 

entitlement by dividing the amount paid 

under paragraph (a) of this section by 

the monthly amount as calculated under 

§ 21.5138(c). The calculation will 

assume that the veteran or 

servicemember is a full-time student. 

(Authority: 38 U.S.C. 3232(c), 3452(b), 3689) 

■ 42. Section 21.5138 is amended by: 

■ a. Revising the introductory text. 

■ b. Revising the introductory text of 

paragraph (a) and the introductory text 

of paragraphs (a)(1) through (a)(5). 

■ c. Revising the introductory text of 

paragraph (b). 

■ d. In paragraph (c), removing ‘‘The 

Department of Veterans Affairs’’ and 

adding, in its place, ‘‘Under this section, 

VA’’ and removing ‘‘the Department of 

Veterans Affairs’’ and adding, in its 

place, ‘‘VA’’. 

The revisions read as follows: 

§ 21.5138 Computation of benefit 

payments and monthly rates. 

Except as provided in §§ 21.5136(b)(1) 

and 21.5137(a), for purposes of this 

subpart VA will compute benefit 

payments and monthly rates as 

provided in this section. 

(Authority: 38 U.S.C. 3231, 3233, 3241, 3491, 

3680, 3689) 

(a) Computation of entitlement factor. 

(1) For residence training, VA will 

compute an entitlement factor as 

follows: 

* * * * * 

(2) For correspondence training, VA 

will compute an entitlement factor as 

follows: 

* * * * * 

(3) For apprenticeship and other onjob training, VA will compute an 

entitlement factor as follows: 

* * * * * 

(4) For cooperative training, VA will 

compute an entitlement factor as 

follows: 

* * * * * 

(5) For flight training, VA will 

compute an entitlement factor as 

follows: 

* * * * * 

(b) Computation of benefit payment. 

Under this section, VA will compute 

benefit payments as follows: 

* * * * * 

■ 43. Section 21.5200 is amended by: 

■ a. In paragraph (d), removing ‘‘by 

schools’’. 

■ b. In paragraph (j), adding a comma 

after the word ‘‘jurisdiction’’. 

■ c. Removing the information 

collection approval parenthetical at the 

end of the section. 

■ 44. Section 21.5230 is amended by: 

■ a. In paragraph (a) introductory text, 

removing ‘‘under chapter 32, title 38 

U.S.C., only if it—’’ and adding, in its 

place, ‘‘for a veteran or servicemember 

under 38 U.S.C. chapter 32, only if—’’. 


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■ b. In paragraph (a)(1), removing 

‘‘Meets’’ and adding, in its place, ‘‘The 

program meets’’, and removing ‘‘of this 

part’’. 

■ c. Revising paragraphs (a)(2), (a)(3), 

and (a)(4). 

■ d. In paragraph (b), removing 

‘‘serviceperson’’ both places that it 

appears and adding, in its place, 

‘‘servicemember’’. 

The revisions read as follows: 

§ 21.5230 Programs of education. 

(a) * * * 

(2) Except for a program consisting of 

a licensing or certification test, the 

program has an objective as described in 

§ 21.5021(r) or (s); 

(3) Any courses, subjects, or licensing 

or certification tests in the program are 

approved for VA training; and 

(4) Except for a program consisting of 

a licensing or certification test designed 

to help the veteran or servicemember 

maintain employment in a vocation or 

profession, the veteran or 

servicemember is not already qualified 

for the objective of the program. 

(Authority: 38 U.S.C. 3202(2), 3689(b)) 

* * * * * 

■ 45. Section 21.5250 is amended by: 

■ a. Revising paragraphs (a)(1), (a)(2), 

(a)(3), (a)(7), and (a)(14). 

■ b. Adding paragraph (a)(17) 

immediately before the authority 

citation for paragraph (a). 

The revisions and addition read as 

follows: 

§ 21.5250 Courses. 

(a) * * * 

(1) Section 21.4250 (except paragraph 

(c)(1))—Course and licensing and 

certification test approval; jurisdiction 

and notices. 

(2) Section 21.4251—Minimum 

period of operation requirement for 

educational institutions. 

(3) Section 21.4252—Courses 

precluded; erroneous, deceptive, or 

misleading practices. 

* * * * * 

(7) Section 21.4256—Correspondence 

programs and courses. 

* * * * * 

(14) Section 21.4265—Practical 

training approved as institutional 

training or on-job training. 

* * * * * 

(17) Section 21.4268—Approval of 

licensing and certification tests. 

* * * * * 

■ 46. Section 21.5294 is amended by: 

■ a. Revising paragraph (d)(3)(iv) and 

the authority citation following 

paragraph (d)(3). 

■ b. Removing paragraph (d)(4). 

The revisions read as follows: 

§ 21.5294 Transfer of entitlement. 

* * * * * 

(d) * * * 

(3) * * * 

(iv) Section 21.5131, and 

* * * * * 

(Authority: Sec. 903, Pub. L. 96–342, 94 Stat. 

1115) 

Subpart K—All Volunteer Force 

Educational Assistance Program 

(Montgomery GI Bill—Active Duty) 

■ 47. The authority citation for part 21, 

subpart K is revised to read as follows: 

Authority: 38 U.S.C. 501(a), chs. 30, 36, 

and as noted in specific sections. 

■ 48. Section 21.7020 is amended by: 

■ a. In the introductory text, removing 

‘‘apply. (See also additional definitions 

in § 21.1029).’’ and adding, in its place, 

‘‘apply.’’. 

■ b. In paragraph (b)(15), removing 

‘‘provided’’ and adding, in its place, 

‘‘provided in’’. 

■ c. In paragraph (b)(23)(iii), removing 

the word ‘‘and’’ at the end of the 

paragraph. 

■ d. In paragraph (b)(23)(iv)(B), 

removing the period and adding ‘‘; and’’

in its place. 

■ e. Adding paragraph (b)(23)(v) 

immediately before the authority 

citation for paragraph (b)(23). 

■ f. Revising the authority citation for 

paragraph (b)(23). 

■ g. In paragraph (b)(25)(i)(F), removing 

the word ‘‘or’’, and in paragraph 

(b)(25)(i)(G), removing the period and 

adding ‘‘, or’’ in its place. 

■ h. Adding paragraph (b)(25)(i)(H). 

■ i. Revising the authority citation for 

paragraph (b)(25). 

■ j. Revising paragraph (b)(37). 

■ k. Adding paragraphs (b)(52), (b)(53), 

(b)(54), and (b)(55). 

The revisions and additions read as 

follows: 

§ 21.7020 Definitions. 

* * * * * 

(b) * * * 

(23) * * * 

(v) Includes a licensing or 

certification test, the passing of which 

demonstrates an individual’s possession 

of the knowledge or skill required to 

enter into, maintain, or advance in 

employment in a predetermined and 

identified vocation or profession, 

provided that VA or a State approving 

agency has approved the test and the 

licensing or credentialing organization 

or entity that offers the test as provided 

in 38 U.S.C. 3689. 

(Authority: 38 U.S.C. 3002(3), 3452(b), 3689) 

* * * * * 

(25) * * * 

(i) * * * 

(H) A licensing or certification test 

taken on or after March 1, 2001. 

(ii) * * * 

(Authority: 38 U.S.C. 3002, 3034, 3452, 

3680(g), 3689; Pub. L. 98–525) 

* * * * * 

(37) Training establishment. The term 

training establishment means any 

establishment providing apprentice or 

other training on-the-job, including 

those under the supervision of a college, 

university, any State department of 

education, any State apprenticeship 

agency, any State board of vocational 

education, any joint apprenticeship 

committee, the Bureau of 

Apprenticeship and Training 

established in accordance with 29 

U.S.C. chapter 4C, or any agency of the 

Federal government authorized to 

supervise such training. 

(Authority: 38 U.S.C. 3002, 3452) 

* * * * * 

(52) Certification test. The term 

certification test means a test that an 

individual must pass in order to receive 

a certificate that provides an affirmation 

of an individual’s qualifications in a 

specified occupation. 

(Authority: 38 U.S.C. 3002(3), 3452(b), 3689) 

(53) Licensing test. The term licensing 

test means a test offered by a State, 

local, or Federal agency, the passing of 

which is a means, or part of a means, 

to obtain a license. That license must be 

required by law in order for the 

individual to practice an occupation in 

the political jurisdiction of the agency 

offering the test. 

(Authority: 38 U.S.C. 3002(3), 3452(b), 3689) 

(54) Organization or entity offering a 

licensing or certification test. (i) The 

term organization or entity offering a 

licensing or certification test means: 

(A) An organization or entity that 

causes a licensing test to be given and 

that will issue a license to an individual 

who passes the test; 

(B) An organization or entity that 

causes a certification test to be given 

and that will issue a certificate to an 

individual who passes the test; or 

(C) An organization or entity that 

administers a certification test for the 

organization or entity that will issue a 

certificate to an individual who passes 

the test, provided that the administering 

organization or entity can provide all 

required information and certifications 

under § 21.4268 to the State approving 

agency and to VA. 

(ii) This term does not include: 

(A) An organization or entity that 

develops and/or proctors a licensing or 


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certification test, but does not issue the 

license or certificate; or 

(B) An organization or entity that 

administers a test but does not issue the 

license or certificate, if that 

administering organization or entity 

cannot provide all required information 

and certifications under § 21.4268 to the 

State approving agency and to VA. 

(Authority: 38 U.S.C. 3002(3), 3452(b), 3689) 

(55) Tuition assistance top-up. The 

term tuition assistance top-up means a 

payment of basic educational assistance 

to meet all or a portion of the charges 

of an educational institution for the 

education or training of a 

servicemember that are not met by the 

Secretary of the military department 

concerned under 10 U.S.C. 2007(a) or 

(c). 

(Authority: 38 U.S.C. 3014(b)) 

* * * * * 

§ 21.7032 [Amended] 

■ 49. Section 21.7032 is amended by: 

■ a. In paragraph (a), removing 

‘‘§ 21.1032.’’ and adding, in its place, 

‘‘§ 21.1033.’’. 

■ b. In paragraph (b)(2), removing 

‘‘§ 21.7131(k).’’ and adding, in its place, 

‘‘§ 21.7131(l).’’. 

§ 21.7051 [Amended] 

■ 50. In § 21.7051, paragraph (a)(1) is 

amended by removing ‘‘§ 21.1032(c) of 

this part.’’ and adding, in its place, 

‘‘§ 21.1033(c).’’. 

■ 51. Section 21.7075 is added to read 

as follows: 

§ 21.7075 Entitlement to tuition assistance 

top-up. 

An individual who is entitled to 

educational assistance under 38 U.S.C. 

chapter 30 is also entitled to 36 months 

of tuition assistance top-up. This 

entitlement is parallel to, and does not 

replace, the entitlement to educational 

assistance available under § 21.7072. If 

the individual receives tuition 

assistance top-up, VA will make a 

charge against both the entitlement 

under § 21.7072 and the entitlement 

under this section. The charge will be as 

described in § 21.7076(b)(11). 

(Authority: 38 U.S.C. 3013, 3014(b), 3032) 

■ 52. Section 21.7076 is amended by: 

■ a. In paragraph (a)(2) and the 

introductory text of paragraph (a)(3), 

removing ‘‘service member’’ and adding, 

in its place, ‘‘servicemember’’. 

■ b. In paragraph (a)(3)(iii), removing 

the word ‘‘or’’ at the end of the 

paragraph. 

■ c. In paragraph (a)(3)(iv), removing the 

period and adding a semicolon in its 

place. 

■ d. Adding paragraphs (a)(3)(v) and 

(a)(3)(vi). 

■ e. In paragraph (a)(4)(i), removing 

‘‘service members’’ and adding, in its 

place, ‘‘servicemembers’’. 

■ f. Revising the authority citation 

following paragraph (a). 

■ g. Revising paragraph (b)(1) 

introductory text and the authority 

citation following paragraphs (b)(2)(ii) 

and (b)(6)(ii). 

■ h. Adding authority citations 

following paragraphs (b)(3)(iii), (b)(4), 

and (b)(5)(ii). 

■ i. Adding paragraphs (b)(10) and 

(b)(11). 

The revisions and additions read as 

follows: 

§ 21.7076 Entitlement charges. 

(a) * * * 

(3) * * * 

(v) Is receiving educational assistance 

for taking an approved licensing or 

certification test; or 

(vi) Is receiving tuition assistance topup. 

* * * * * 

(Authority: 38 U.S.C. 3013, 3014(b), 3014A, 

3689) 

(b) * * * 

(1) Except for those pursuing 

correspondence training, flight training, 

apprenticeship or other on-job training; 

those receiving tuition assistance topup; those receiving educational 

assistance for taking an approved 

licensing or certification test; those 

receiving tutorial assistance; and those 

receiving an accelerated payment, VA 

will make a charge against entitlement: 

* * * * * 

(2) * * * 

(ii) * * * 

(Authority: 38 U.S.C. 3013) 

(3) * * * 

(iii) * * * 

(Authority: 38 U.S.C. 3032(c)) 

(4) * * * 

(Authority: 38 U.S.C. 3015(e), 3032(c)) 

(5) * * * 

(ii) * * * 

(Authority: 38 U.S.C. 3032(d)) 

(6) * * * 

(ii) * * * 

(Authority: 38 U.S.C. 3032(c), 3032(d)) 

* * * * * 

(10) When a servicemember receives 

tuition assistance top-up, VA will make 

a charge against his or her entitlement 

as established under § 21.7072 equal to 

the number of months and days 

determined by dividing the total amount 

paid by an amount equal to the 

servicemember’s monthly rate of basic 

educational assistance as calculated 

under § 21.7136. VA will make a charge 

against his or her tuition assistance topup entitlement as established under 

§ 21.7075 by subtracting from that 

entitlement the total number of months 

and days in the term, quarter, or 

semester for which the servicemember 

received tuition assistance. 

(Authority: 38 U.S.C. 3014(b)) 

(11) When a veteran or servicemember 

receives educational assistance for 

taking an approved licensing or 

certification test, VA will make a charge 

against his or her entitlement equal to 

the number of months and days 

determined by dividing the total amount 

paid by an amount equal to the 

servicemember’s monthly rate of basic 

educational assistance as calculated 

under § 21.7136, excluding any 

additional ‘‘kicker’’ that may be paid 

under § 21.7136(g). 

(Authority: 38 U.S.C. 3032(f)(2)) 

* * * * * 

■ 53. Section 21.7110 is revised to read 

as follows: 

§ 21.7110 Selection of a program of 

education. 

(a) Payments of educational 

assistance are usually based on pursuit 

of a program of education. In order to 

receive educational assistance under 38 

U.S.C. chapter 30, a veteran or 

servicemember must—

(1) Be pursuing an approved program 

of education; 

(2) Be pursuing refresher or deficiency 

courses; 

(3) Be pursuing other preparatory or 

special education or training courses 

necessary to enable the veteran or 

servicemember to pursue an approved 

program of education; 

(4) Have taken an approved licensing 

or certification test, for which he or she 

is requesting reimbursement; or 

(5) Be an individual who has taken a 

course for which the individual 

received tuition assistance provided 

under a program administered by the 

Secretary of a military department 

under 10 U.S.C. 2007(a) or (c), for which 

the individual is requesting tuition 

assistance top-up. 

(Authority: 38 U.S.C. 3014, 3023, 3034, 3689) 

(b) Approval of a program of 

education. VA will approve a program 

of education under 38 U.S.C. chapter 30 

that a veteran or servicemember selects 

if: 

(1) It meets the definition of a 

program of education found in 

§ 21.7020(b)(23); 

(2) Except for a program consisting of 

a licensing or certification test, has an 

objective as described in 

§ 21.7020(b)(13) or (22); 


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(3) The courses, subjects, or licensing 

or certification tests in the program are 

approved for VA training; and 

(4) Except for a program consisting of 

a licensing or certification test designed 

to help the veteran or servicemember 

maintain employment in a vocation or 

profession, the veteran or 

servicemember is not already qualified 

for the objective of the program. 

(Authority: 38 U.S.C. 3002(3), 3034, 3471, 

3689) 

■ 54. Section 21.7122 is amended by: 

■ a. Revising paragraphs (a), (b), and (c), 

and the authority citation for paragraph 

(e). 

■ b. In paragraph (e)(7), removing the 

word ‘‘or’’. 

■ c. In paragraph (e)(8), removing the 

period and adding ‘‘; or’’ in its place. 

■ d. Adding paragraph (e)(9). 

The revisions and addition read as 

follows: 

§ 21.7122 Courses precluded. 

(a) Unapproved courses. The 

provisions of this section which refer to 

a State approving agency will be 

deemed to refer to VA with respect to 

a State when that State does not have 

and fails or declines to create or 

designate a State approving agency; or 

fails to enter into an agreement as 

provided in § 21.4153 (see § 21.4150(c)). 

Except for payment of tuition assistance 

top-up, VA will not pay educational 

assistance for: 

(1) An enrollment in any course that 

a State approving agency has not 

approved; 

(2) A new enrollment in a course 

while a State approving agency has 

suspended the course for new 

enrollments; 

(3) Any period within an enrollment 

in a course if the period occurs after the 

date a State approving agency 

disapproves the course; or 

(4) Taking a licensing or certification 

test after the date a State approving 

agency disapproves the test. See 

§ 21.7220. 

(Authority: 38 U.S.C. 3014(b), 3034, 3672) 

(b) Courses outside a program of 

education. VA will not pay educational 

assistance for an enrollment in any 

course that is not part of a program of 

education unless the veteran or 

servicemember is enrolled in: 

(1) A refresher course (including a 

course which will permit the veteran or 

servicemember to update knowledge 

and skills or be instructed in the 

technological advances which have 

occurred in the veteran’s or 

servicemember’s field of employment); 

(2) A deficiency course; 

(3) A preparatory, special education, 

or training course necessary to enable 

the veteran or servicemember to pursue 

an approved program of education; or 

(4) A course for which the veteran or 

servicemember is seeking tuition 

assistance top-up. 

(Authority: 38 U.S.C. 3002(3), 3014(b), 3034, 

3452(b)) 

(c) Erroneous, deceptive, misleading 

practices. (1) VA will not pay 

educational assistance for: 

(i) An enrollment in any course 

offered by an educational institution 

that uses advertising, sales, or 

enrollment practices that are erroneous, 

deceptive, or misleading by actual 

statement, omission, or intimation. 

(ii) Taking a licensing or certification 

test if the organization or entity offering 

the test uses advertising or sales 

practices, or candidate handbooks, that 

are erroneous, deceptive, or misleading 

by actual statement, omission, or 

intimation. 

(2) VA will apply the provisions of 

§ 21.4252(h) in making these payment 

decisions. 

(Authority: 3034, 3689(d), 3696) 

* * * * * 

(e) * * * 

(9) Taking a licensing or certification 

test after the date the State approving 

agency suspends approval of the test. 

(Authority: 38 U.S.C. 3002(3), 3034, 3672(a), 

3676, 3680(a), 3680A(a), 3680A(f), 3680(g), 

3689(d)) 

■ 55. Section 21.7124 is revised to read 

as follows: 

§ 21.7124 Overcharges. 

(a) Overcharges by educational 

institutions may result in the 

disapproval of enrollments. VA may 

disapprove an educational institution 

for further enrollments when the 

educational institution charges or 

receives from a veteran or 

servicemember tuition and fees that 

exceed the established charges that the 

educational institution requires from 

similarly circumstanced nonveterans 

enrolled in the same course. 

(Authority: 38 U.S.C. 3034, 3690(a)) 

(b) Overcharges by organizations or 

entities offering licensing or certification 

tests may result in disapproval of tests. 

VA may disapprove an organization or 

entity offering a licensing or 

certification test when the organization 

or entity offering the test charges or 

receives from a veteran or 

servicemember fees that exceed the 

established fees that the organization or 

entity requires from similarly 

circumstanced nonveterans taking the 

same test. 

(Authority: 38 U.S.C. 3689(d), 3690(a)) 

■ 56. Section 21.7131 is amended by: 

■ a. Revising the introductory text. 

■ b. Redesignating paragraph (a)(1) 

introductory text and paragraphs 

(a)(1)(i) through (a)(1)(v) as paragraph 

(a)(1)(i) and paragraphs (a)(1)(i)(A) 

through (a)(1)(i)(E), respectively; 

redesignating paragraph (a)(2) 

introductory text and paragraphs 

(a)(2)(i) and (a)(2)(ii) as paragraph 

(a)(1)(ii) and paragraphs (a)(1)(ii)(A) and 

(a)(1)(ii)(B), respectively; and adding a 

paragraph (a)(1) heading and new 

paragraph (a)(2). 

■ c. Revising the authority citation 

following paragraph (a). 

■ d. Removing the information 

collection approval parenthetical 

following paragraph (p). 

The revisions and additions read as 

follows: 

§ 21.7131 Commencing dates. 

VA will determine under this section 

the commencing date of an award or 

increased award of educational 

assistance. When more than one 

paragraph in this section applies, VA 

will award educational assistance using 

the latest of the applicable commencing 

dates. 

(a) * * * 

(1) For other than licensing or 

certification tests. 

* * * * * 

(2) For licensing or certification tests. 

VA will award educational assistance 

for the cost of a licensing or certification 

test only when the veteran or 

servicemember takes such test—

(i) While the test is approved under 

38 U.S.C. chapter 36; 

(ii) While the veteran or 

servicemember is eligible for 

educational assistance under this 

subpart; and 

(iii) No more than one year before the 

date VA receives a claim for 

reimbursement of the cost of the test. 

(Authority: 38 U.S.C. 3014, 3023, 3034, 3672, 

3689, 5110, 5113) 

* * * * * 

■ 57. Section 21.7135 is amended by: 

■ a. In the introductory text of 

paragraph (i), removing ‘‘§ 21.4211(d) 

and (g)’’ and adding, in its place, 

‘‘§§ 21.4215(d) and 21.4216’’. 

■ b. In paragraph (i)(2), removing 

‘‘§ 21.4211(d) and (g)’’ and adding, in its 

place, ‘‘§ 21.4215(d)’’. 

■ c. In paragraph (j)(1), removing 

‘‘director’’ and adding, in its place, 

‘‘Director’’. 

■ d. In paragraphs (j) and (k), removing 

‘‘facility’’ each place that it appears, and 

adding, in its place, ‘‘Regional 

Processing Office’’. 


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16982 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 

■ 58. Section 21.7140 is amended by: 

■ a. Adding an authority citation for 

paragraph (b). 

■ b. Revising paragraph (c) introductory 

text, paragraph (c)(1) introductory text, 

and the authority citation following 

paragraph (c)(1)(ii). 

■ c. Adding paragraphs (c)(4) and (c)(5), 

and, at the end of the section, an 

information collection approval 

parenthetical. 

The revisions and additions read as 

follows: 

§ 21.7140 Certifications and release of 

payments. 

* * * * * 

(b) * * * 

(Authority: 38 U.S.C. 3014A) 

(c) Other payments. Except for an 

individual who is seeking tuition 

assistance top-up, an individual must be 

pursuing a program of education in 

order to receive payments of 

educational assistance under 38 U.S.C. 

chapter 30. To ensure that this is the 

case, the provisions of this paragraph 

must be met. 

(1) VA will pay educational assistance 

to a veteran or servicemember (other 

than one pursuing a program of 

apprenticeship, other on-job training, or 

a correspondence course; one seeking 

tuition assistance top-up;, one seeking 

reimbursement for taking an approved 

licensing or certification test; one who 

qualifies for an advance payment; one 

who qualifies for an accelerated 

payment; or one who qualifies for a 

lump sum payment) only after: 

(i) * * * 

(ii) * * * 

(Authority: 38 U.S.C. 3680(g), 3689) 

* * * * * 

(4) VA will pay educational assistance 

to a veteran or servicemember as 

reimbursement for taking an approved 

licensing or certification test only after 

the veteran or servicemember has 

submitted to VA a copy of the veteran’s 

or servicemember’s official test results 

and, if not included in the results, a 

copy of another official form (such as a 

receipt or registration form) that 

together must include: 

(i) The name of the test; 

(ii) The name and address of the 

organization or entity issuing the license 

or certificate; 

(iii) The date the veteran or 

servicemember took the test; and 

(iv) The cost of the test. 

(Authority: 38 U.S.C. 3689) 

(5) VA will pay educational assistance 

for tuition assistance top-up only after 

the individual has submitted to VA a 

copy of the form(s) that the military 

service with jurisdiction requires for 

tuition assistance and that had been 

presented to the educational institution, 

covering the course or courses for which 

the claimant wants tuition assistance 

top-up. If the form(s) submitted did not 

contain the amount of tuition assistance 

charged to the individual, VA may delay 

payment until VA obtains that 

information from the educational 

institution. Examples of these forms 

include: 

(i) DA Form 2171, Request for Tuition 

Assistance—Army Continuing 

Education System; 

(ii) AF Form 1227, Authority for 

Tuition Assistance—Education Services 

Program; 

(iii) NAVMC 10883, Application for 

Tuition Assistance, and either 

NAVEDTRA 1560/5, Tuition Assistance 

Authorization or NAVMC (page 2), 

Tuition Assistance Authorization; 

(iv) Department of Homeland 

Security, USCG CG–4147, Application 

for Off-Duty Assistance; and 

(v) Request for Top-Up: eArmyU 

Program. 

(Authority: 38 U.S.C. 5101(a)) 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

provisions in this section under control 

numbers 2900–0695 and 2900–0698.) 

■ 59. Section 21.7142 is revised to read 

as follows: 

§ 21.7142 Accelerated payments, payment 

of tuition assistance top-up, and licensing 

or certification test reimbursement. 

(a) Amount of accelerated payment. 

An accelerated payment will be the 

lesser of—

(1) The amount equal to 60 percent of 

the charged tuition and fees for the 

term, quarter, or semester (or the entire 

program of education for those programs 

not offered on a term, quarter, or 

semester basis), or 

(2) The aggregate amount of basic 

educational assistance to which the 

individual remains entitled under 38 

U.S.C. chapter 30 at the time of the 

payment. 

(Authority: 38 U.S.C. 3014A) 

(b) Amount of tuition assistance topup. The amount of tuition assistance 

top-up VA will pay to an individual for 

a course is the lowest of the following: 

(1) All of the charges of the 

educational institution for the 

individual’s education or training that 

the Secretary of the military department 

concerned has not paid under 10 U.S.C. 

2007(a) or 2007(c); 

(2) That portion of the charges of the 

educational institution for the 

individual’s education that the 

Secretary of the military department 

concerned has not paid under 10 U.S.C. 

2007(a) or 2007(c) and for which the 

individual has stated to VA that he or 

she wishes to receive payment; 

(3) An amount VA will determine by 

multiplying the individual’s remaining 

months and days of entitlement to 

educational assistance as provided 

under § 21.7072 or § 21.7073 by the 

individual’s monthly rate of basic 

educational assistance as provided 

under § 21.7136 or § 21.7137, as 

appropriate; 

(4) An amount VA will determine by 

multiplying the individual’s remaining 

months and days of entitlement to 

tuition assistance top-up as provided 

under § 21.7075 by the individual’s 

monthly rate of basic educational 

assistance as provided under § 21.7136 

or § 21.7137, as appropriate; or 

(5) An amount VA will determine 

by—

(i) Dividing the total number of days 

from the date on which the individual 

became eligible for educational 

assistance under the Montgomery GI 

Bill—Active Duty by the number of days 

in the term during which the individual 

took the course or course for which he 

or she wants tuition assistance top-up; 

and 

(ii) Multiplying the result by the 

amount stated in paragraph (a)(1) or 

(a)(2) of this section, as appropriate. 

(Authority: 38 U.S.C. 3014(b)) 

(c) Amount of reimbursement for 

taking a licensing or certification test. 

The amount of educational assistance 

VA will pay as reimbursement for taking 

an approved licensing or certification 

test is the lowest of the following: 

(1) The fee that the licensing or 

certification organization offering the 

test charges for taking the test; 

(2) $2,000; or 

(3) An amount VA will determine by 

multiplying the veteran’s or 

servicemember’s remaining months and 

days of entitlement to educational 

assistance as provided under § 21.7072 

or § 21.7073 by the veteran’s or 

servicemember’s monthly rate of basic 

educational assistance as provided 

under § 21.7136 or § 21.7137, as 

appropriate. 

(Authority: 38 U.S.C. 3032(f)) 

■ 60. Section 21.7150 is amended by: 

■ a. Removing ‘‘The’’ and adding, in its 

place, ‘‘Except for a veteran or 

servicemember seeking tuition 

assistance top-up or reimbursement for 

taking an approved licensing or 

certification test, the’’. 

■ b. Revising the authority citation. 

The revision reads as follows: 


pwalker on PROD1PC71 with RULES4
Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules and Regulations 16983 

§ 21.7150 Pursuit. 

* * * * * 

(Authority: 38 U.S.C. 3034(b)) 

■ 61. Section 21.7152 is amended by: 

■ a. In the introductory text, removing 

‘‘As stated in § 21.7140 of this part’’ and 

adding, in its place, ‘‘Except as stated in 

§ 21.7140’’. 

■ b. Revising paragraph (a). 

The revision reads as follows: 

§ 21.7152 Certification of enrollment. 

* * * * * 

(a) Educational institutions must 

certify most enrollments. VA does not, 

as a condition of payment of tuition 

assistance top-up or advance payment, 

require educational institutions to 

certify the enrollments of veterans or 

servicemembers who either are seeking 

tuition assistance top-up or, in the cases 

described in § 21.7151, are seeking an 

advance payment. VA does not require 

organizations or entities offering a 

licensing or certification test to certify 

the fact that the veteran or 

servicemember took the test. In all other 

cases the educational institution must 

certify the veteran’s or servicemember’s 

enrollment before he or she may receive 

educational assistance. This 

certification must be in a form specified 

by the Secretary and contain such 

information as the Secretary may 

specify. 

(Authority: 38 U.S.C. 3014(b), 3031, 3034, 

3482(g), 3680, 3687, 3689, 5101(a)) 

* * * * * 

■ 62. Section 21.7220 is amended by: 

■ a. Revising paragraphs (b)(1) and 

(b)(2). 

■ b. In paragraphs (b)(3) through (b)(10), 

removing the commas at the end of the 

paragraphs and adding semicolons in 

their places. 

■ c. In paragraph (b)(11), removing the 

period and adding ‘‘; and’’ in its place. 

■ d. Adding paragraph (b)(12) 

immediately before the authority 

citation for paragraph (b). 

The revisions and addition read as 

follows: 

§ 21.7220 Course approval. 

* * * * * 

(b) * * * 

(1) Section 21.4250 (except paragraph 

(c)(1))—Jurisdiction for course and 

licensing and certification test approval 

and approval notices; 

(2) Section 21.4251—Minimum 

period of operation requirement for 

educational institutions; 

* * * * * 

(12) Section 21.4268—Approval of 

licensing and certification tests. 

* * * * * 

[FR Doc. E7–5842 Filed 4–4–07; 8:45 am] 

BILLING CODE 8320–01–P 


pwalker on PROD1PC71 with RULES4