62004 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 5 

RIN 2900–AL88 

Special Ratings 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to reorganize and 

rewrite in plain language regulations 

relating to special ratings and ratings for 

health care eligibility only. These 

revisions are proposed as part of VA’s 

rewrite and reorganization of all of its 

compensation and pension rules in a 

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

the proposed revisions is to assist 

claimants and VA personnel in locating 

and understanding these provisions. 

DATES: Comments must be received by 

VA on or before December 16, 2008. 

ADDRESSES: Written comments may be 

submitted through http:// 

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

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

(This is not a toll free number). 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AL88—Special Ratings.’’ Copies of 

comments received will be available for 

public inspection in the Office of 

Regulation Policy and Management, 

Room 1063B, between the hours of 8 

a.m. and 4:30 p.m., Monday through 

Friday (except holidays). Please call 

(202) 461–4902 for an appointment. 

(This is not a toll free number). In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at http:// 

www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

William F. Russo, Director, Regulations 

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Avenue, 

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

9515. (This is not a toll free number). 

SUPPLEMENTARY INFORMATION: The 

Secretary of Veterans Affairs has 

established an Office of Regulation 

Policy and Management (ORPM) to 

provide centralized management and 

coordination of VA’s rulemaking 

process. One of the major functions of 

this office is to oversee a Regulation 

Rewrite Project (the Project) to improve 

the clarity and consistency of existing 

VA regulations. The Project responds to 

a recommendation made in the October 

2001 ‘‘VA Claims Processing Task 

Force: Report to the Secretary of 

Veterans Affairs.’’ The Task Force 

recommended that the compensation 

and pension regulations be rewritten 

and reorganized in order to improve 

VA’s claims adjudication process. 

Therefore, the Project began its efforts 

by reviewing, reorganizing, and 

redrafting the content of the regulations 

in 38 CFR part 3 governing the 

compensation and pension program of 

the Veterans Benefits Administration. 

These regulations are among the most 

difficult VA regulations for readers to 

understand and apply. 

Once rewritten, the proposed 

regulations will be published in several 

portions for public review and 

comment. This is one such portion. It 

includes proposed rules regarding 

special ratings. After review and 

consideration of public comments, final 

versions of these proposed regulations 

will ultimately be published in a new 

part 5 in 38 CFR. 

Outline 

Overview of New Part 5 Organization 

Overview of This Notice of Proposed 

Rulemaking 

Table Comparing Current Part 3 Rules With 

Proposed Part 5 Rules 

Content of Proposed Regulations 

Special Monthly Compensation 

5.320 Determining need for regular aid and 

attendance. 

5.321 Additional compensation for veteran 

whose spouse needs regular aid and 

attendance. 

5.322 Special monthly compensation— 

general information and definitions of 

disabilities. 

5.323 Special monthly compensation under 

38 U.S.C. 1114(k). 

5.324 Special monthly compensation under 

38 U.S.C. 1114(l). 

5.325 Special monthly compensation at the 

intermediate rate between 38 U.S.C. 

1114(l) and (m). 

5.326 Special monthly compensation under 

38 U.S.C. 1114(m). 

5.327 Special monthly compensation at the 

intermediate rate between 38 U.S.C. 

1114(m) and (n). 

5.328 Special monthly compensation under 

38 U.S.C. 1114(n). 

5.329 Special monthly compensation at the 

intermediate rate between 38 U.S.C. 

1114(n) and (o). 

5.330 Special monthly compensation under 

38 U.S.C. 1114(o). 

5.331 Special monthly compensation under 

38 U.S.C. 1114(p). 

5.332 Additional allowance for regular aid 

and attendance under 38 U.S.C. 

1114(r)(1) or for a higher level of care 

under 38 U.S.C. 1114(r)(2). 

5.333 Special monthly compensation under 

38 U.S.C. 1114(s). 

5.334 Special monthly compensation tables. 

5.335 Effective dates—Special monthly 

compensation under §§ 5.332 and 5.333. 

5.336 Effective dates—additional 

compensation for regular aid and 

attendance payable for a veteran’s spouse 

under § 5.321. 

5.337 Award of special monthly 

compensation based on the need for 

regular aid and attendance during period 

of hospitalization. 

Tuberculosis 

5.340 Pulmonary tuberculosis shown by Xray in active service. 

5.341 Presumptive service connection for 

tuberculous disease; wartime and service 

after December 31, 1946. 

5.342 Initial grant following inactivity of 

tuberculosis. 

5.343 Effect of diagnosis of active 

tuberculosis. 

5.344 Determination of inactivity (complete 

arrest) of tuberculosis. 

5.345 Changes from activity in pulmonary 

tuberculosis pension cases. 

5.346 Tuberculosis and compensation 

under 38 U.S.C. 1114(q) and 1156. 

5.347 Continuance of a total disability 

rating for service-connected tuberculosis. 

Injury or Death Due to Hospitalization or 

Treatment 

5.350 Benefits under 38 U.S.C. 1151(a) for 

additional disability or death due to 

hospital care, medical or surgical 

treatment, examination, training and 

rehabilitation services, or compensated 

work therapy program. 

5.351 Effective dates for awards of benefits 

under 38 U.S.C. 1151(a). 

5.352 Effect on benefits awarded under 38 

U.S.C. 1151(a) of Federal Tort Claims Act 

compromises, settlements, and 

judgments entered after November 30, 

1962. 

5.353 Effect on benefits awarded under 38 

U.S.C. 1151(a) of Federal Tort Claims Act 

administrative awards, compromises, 

settlements, and judgments finalized 

before December 1, 1962. 

Ratings for Healthcare Eligibility Only 

5.360 Service connection of dental 

conditions for treatment purposes. 

5.361 Healthcare eligibility of persons 

administratively discharged under otherthan-honorable conditions. 

5.362 Presumption of service incurrence of 

active psychosis for purposes of hospital, 

nursing home, domiciliary, and medical 

care. 

5.363 Determination of service connection 

for former members of the Armed Forces 

of Czechoslovakia or Poland. 

Miscellaneous Service-Connection 

Regulations 

5.365 Claims based on the effects of 

tobacco products. 

5.366 Disability due to impaired hearing. 

5.367 Civil service preference ratings. 

5.368 Basic eligibility determinations: home 

loan and education benefits. 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules 62005 

Endnote Regarding Amendatory Language 

Paperwork Reduction Act 

Regulatory Flexibility Act 

Executive Order 12866 

Unfunded Mandates 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

List of Subjects in 38 CFR Part 5 

Overview of New Part 5 Organization 

We plan to organize the new part 5 

regulations so that most provisions 

governing a specific benefit are located 

in the same subpart, with general 

provisions pertaining to all 

compensation and pension benefits also 

grouped together. This organization will 

allow claimants, beneficiaries, and their 

representatives, as well as VA 

adjudicators, to find information 

relating to a specific benefit more 

quickly than the organization provided 

in current part 3. 

The first major subdivision would be 

‘‘Subpart A—General Provisions.’’ It 

would include information regarding 

the scope of the regulations in new part 

5, general definitions, and general 

policy provisions for this part. This 

subpart was published as proposed on 

March 31, 2006. See 71 FR 16464. 

‘‘Subpart B—Service Requirements for 

Veterans’’ would include information 

regarding a veteran’s military service, 

including the minimum service 

requirement, types of service, periods of 

war, and service evidence requirements. 

This subpart was published as proposed 

on January 30, 2004. See 69 FR 4820. 

‘‘Subpart C—Adjudicative Process, 

General’’ would inform readers about 

types of claims and filing procedures, 

VA’s duties, rights and responsibilities 

of claimants and beneficiaries, general 

evidence requirements, and effective 

dates for new awards, as well as 

revision of decisions and protection of 

VA ratings. This subpart will be 

published as three separate Notices of 

Proposed Rulemaking (NPRMs) due to 

its size. The first, concerning the duties 

of VA and the rights and responsibilities 

of claimants and beneficiaries, was 

published as proposed on May 10, 2005. 

See 70 FR 24680. The second, covering 

general evidence requirements, effective 

dates for awards, revision of decisions, 

and protection of VA ratings, was 

published as proposed on May 22, 2007. 

See 72 FR 28770. The third NPRM, 

concerning rules on filing VA benefits 

claims, was published as proposed on 

April 14, 2008. See 73 FR 20136. 

‘‘Subpart D—Dependents and 

Survivors’’ would inform readers how 

VA determines whether an individual is 

a dependent or a survivor of a veteran. 

It would also provide the evidence 

requirements for these determinations. 

This subpart was published as proposed 

on September 20, 2006. See 71 FR 

55052. 

‘‘Subpart E—Claims for Service 

Connection and Disability 

Compensation’’ would define serviceconnected compensation, including 

direct and secondary service 

connection. This subpart would inform 

readers how VA determines entitlement 

to service connection. The subpart 

would also contain those provisions 

governing presumptions related to 

service connection, rating principles, 

and effective dates, as well as several 

special ratings. This subpart will be 

published as three separate NPRMs due 

to its size. The first, concerning 

presumptions related to service 

connection, was published as proposed 

on July 27, 2004. See 69 FR 44614. The 

second, concerning special ratings, is 

the subject of this document. 

‘‘Subpart F—Nonservice-Connected 

Disability Pensions and Death 

Pensions’’ would include information 

regarding the three types of nonserviceconnected pension: Old-Law Pension, 

Section 306 Pension, and Improved 

Pension. This subpart would also 

include those provisions that state how 

to establish entitlement to Improved 

Pension, and the effective dates 

governing each pension. This subpart 

would be published in two separate 

NPRMs due to its size. The portion 

concerning Old-Law Pension, Section 

306 Pension, and elections of Improved 

Pension was published as proposed on 

December 27, 2004. See 69 FR 77578. 

The portion concerning Improved 

Pension was published as proposed on 

September 26, 2007. See 72 FR 54776. 

‘‘Subpart G—Dependency and 

Indemnity Compensation, Accrued 

Benefits, and Special Rules Applicable 

Upon Death of a Beneficiary’’ would 

contain regulations governing claims for 

dependency and indemnity 

compensation (DIC); accrued benefits; 

benefits awarded, but unpaid at death; 

and various special rules that apply to 

the disposition of VA benefits, or 

proceeds of VA benefits, when a 

beneficiary dies. This subpart would 

also include related definitions, 

effective-date rules, and rate-of-payment 

rules. This subpart was published as 

two separate NPRMs due to its size. The 

portion concerning accrued benefits, 

special rules applicable upon the death 

of a beneficiary, and several effectivedate rules was published as proposed on 

October 1, 2004. See 69 FR 59072. The 

portion concerning DIC benefits and 

general provisions relating to proof of 

death and service-connected cause of 

death was published as proposed on 

October 21, 2005. See 70 FR 61326. 

‘‘Subpart H—Special and Ancillary 

Benefits for Veterans, Dependents, and 

Survivors’’ would pertain to special and 

ancillary benefits available, including 

benefits for children with various birth 

defects. This subpart was published as 

proposed on March 9, 2007. See 72 FR 

10860. 

‘‘Subpart I—Benefits for Certain 

Filipino Veterans and Survivors’’ would 

pertain to the various benefits available 

to Filipino veterans and their survivors. 

This subpart was published as proposed 

on June 30, 2006. See 71 FR 37790. 

‘‘Subpart J—Burial Benefits’’ would 

pertain to burial allowances. This 

subpart was published as proposed on 

April 8, 2008. See 73 FR 19021. 

‘‘Subpart K—Matters Affecting the 

Receipt of Benefits’’ would contain 

provisions regarding bars to benefits, 

forfeiture of benefits, and renouncement 

of benefits. This subpart was published 

as proposed on May 31, 2006. See 71 FR 

31056. 

‘‘Subpart L—Payments and 

Adjustments to Payments’’ would 

include general rate-setting rules, 

several adjustment and resumption 

regulations, and election-of-benefit 

rules. This subpart will be published as 

two separate NPRMs due to its size. The 

portion concerning payments to 

beneficiaries who are eligible for more 

than one benefit was published as 

proposed on October 2, 2007. See 72 FR 

56136. 

The final subpart, ‘‘Subpart M— 

Apportionments to Dependents and 

Payments to Fiduciaries and 

Incarcerated Beneficiaries,’’ would 

include regulations governing 

apportionments, benefits for 

incarcerated beneficiaries, and 

guardianship. 

Some of the regulations in this NPRM 

cross-reference other compensation and 

pension regulations. If those regulations 

have been published in this or earlier 

NPRMs for the Project, we cite the 

proposed part 5 section. We also 

include, in the relevant portion of the 

Supplementary Information, the Federal 

Register document citation (including 

the Regulation Identifier Number and 

Subject Heading) where a proposed part 

5 section published in an earlier NPRM 

may be found. However, where a 

regulation proposed in this NPRM 

would cross-reference a proposed part 5 

regulation that has not yet been 

published, we cite the current part 3 

regulation that deals with the same 

subject matter. The current part 3 

section we cite may differ from its 

eventual part 5 counterpart in some 

respects, but this method will assist 


jlentini on PROD1PC65 with PROPOSALS2
62006 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules 

readers in understanding these 

proposed regulations where no part 5 

counterpart has yet been published. If 

there is no part 3 counterpart to a 

proposed part 5 regulation that has not 

yet been published, we have inserted 

‘‘[regulation that will be published in a 

future Notice of Proposed Rulemaking]’’ 

where the part 5 regulation citation 

would be placed. 

Because of its large size, proposed 

part 5 will be published in a number of 

NPRMs, such as this one. VA will not 

adopt any portion of part 5 as final until 

all of the NPRMs have been published 

for public comment. 

In connection with this rulemaking, 

VA will accept comments relating to a 

prior rulemaking issued as a part of the 

Project, if the matter being commented 

on relates to both rulemakings. 

Overview of This Notice of Proposed 

Rulemaking 

This proposed rulemaking pertains to 

those regulations governing special 

ratings. These regulations would be 

contained in proposed Subpart E of new 

38 CFR part 5. Although these 

regulations have been substantially 

restructured and rewritten for greater 

clarity and ease of use, most of the basic 

concepts contained in these proposed 

regulations are the same as in their 

existing counterparts in 38 CFR part 3. 

However, a few substantive changes are 

proposed, as are some regulations that 

do not have counterparts in 38 CFR part 

3. 

Table Comparing Current Part 3 Rules 

With Proposed Part 5 Rules 

The following table shows the 

relationship between the proposed 

regulations contained in this NPRM and 

the current regulations in part 3: 

Proposed part 5 

section or paragraph 

Based in whole or in 

part on 38 CFR part 

3 section or 

paragraph 

5.320(a) ..................... 3.351(b), 3.352(a) 

[first, fifth–seventh 

sentences]. 

5.320(b) ..................... 3.352(a) [second– 

fourth sentences]. 

5.321(a) ..................... 3.351(a)(2) and (b). 

5.321(b)(1)–(3) .......... 3.351(c)(1)–(2). 

5.321(c) ..................... 3.351(c)(3). 

5.322(a) ..................... New. 

5.322(b), (c)(1)–(3) .... 3.350(a)(2)(i). 

5.322(c)(4) ................. 3.350(a)(2)(i) (b) [sic]. 

5.322(d) ..................... 3.350(c)(2). 

5.322(e) ..................... 3.350(d). 

5.322(f) ...................... 3.350(b)(2) [second 

sentence]. 

5.322(g) ..................... 3.350(a)(4). 

5.323(a)(1)–(8) .......... 3.350(a). 

Proposed part 5 

section or paragraph 

Based in whole or in 

part on 38 CFR part 

3 section or 

paragraph 

5.323(b)(1) ................. 3.350(a). 

5.323(b)(2) ................. 3.350(a). 

5.323(c)(1) ................. New. 

5.323(c)(2) ................. 3.350(a)(1)(i) [first 

sentence]. 

5.323(c)(3)(i)–(iii) ....... 3.350(a)(1)(i) [second 

sentence]. 

5.323(c)(3)(iv) ............ New. 

5.323(c)(4) ................. New. 

5.323(c)(5) ................. New. 

5.323(c)(6) ................. 3.350(a)(1)(iii). 

5.323(c)(7) ................. 3.350(a)(1)(iv). 

5.323(d)(1) ................. 3.350(a)(3)(i). 

5.323(d)(2) ................. 3.350(a)(3)(ii). 

5.323(e) ..................... 3.350(a)(5). 

5.323(f) ...................... 3.350(a)(6). 

5.324 [introduction] .... 3.350(b). 

5.324(a) ..................... 3.350(b), (b)(1). 

5.324(b) ..................... 3.350(b), (b)(1). 

5.324(c) ..................... 3.350(b), (b)(2). 

5.324(d) ..................... 3.350(b), (b)(4). 

5.324(e) ..................... 3.350(b)(3). 

5.325 [introduction] .... 3.350(f). 

5.325(a) ..................... 3.350(f)(1)(i). 

5.325(b) ..................... 3.350(f)(1)(iii). 

5.325(c) ..................... 3.350(f)(1)(vi). 

5.325(d) ..................... 3.350(f)(2)(i). 

5.326 [introduction] .... 3.350(c)(1). 

5.326(a) ..................... 3.350(c)(1)(i). 

5.326(b) ..................... 3.350(c)(1)(ii). 

5.326(c) ..................... 3.350(f)(1)(ii). 

5.326(d) ..................... 3.350(f)(1)(iv). 

5.326(e) ..................... 3.350(c)(1)(iii). 

5.326(f) ...................... 3.350(f)(1)(viii). 

5.326(g) ..................... 3.350(c)(1)(iv). 

5.326(h) ..................... 3.350(f)(2)(ii). 

5.326(i) ...................... 3.350(c)(1)(v), (c)(3), 

and 4.79 [last 

sentence]. 

5.327 [introduction] .... 3.350(f). 

5.327(a) ..................... 3.350(f)(1)(x). 

5.327(b) ..................... 3.350(f)(1)(v). 

5.327(c) ..................... 3.350(f)(1)(vii). 

5.327(d) ..................... 3.350(f)(1)(ix). 

5.327(e) ..................... 3.350(f)(2)(iii). 

5.328 .......................... 3.350(d) [introduction]. 

5.328(a) ..................... 3.350(d)(1). 

5.328(b) ..................... 3.350(f)(1)(xi). 

5.328(c) ..................... 3.350(d)(2). 

5.328(d) ..................... 3.350(d) and (d)(3). 

5.328(e) ..................... 3.350(d)(4). 

5.329 .......................... 3.350(f), (f)(1)(xii). 

5.330 [introduction] .... 3.350(e)(1). 

5.330(a) ..................... 3.350(e)(1)(i). 

5.330(b) ..................... 3.350(e)(1)(iii). 

5.330(c) ..................... 3.350(e)(1)(iv). 

5.330(d) ..................... 3.350(e)(2). 

5.330(e) ..................... 3.350(e)(1)(ii) and 

(e)(3). 

5.331(a) ..................... 3.350(f). 

5.331(b)(1) ................. 3.350(f)(2)(iv). 

5.331(b)(2) ................. 3.350(f)(2)(v). 

5.331(b)(3) ................. 3.350(f)(2)(vi). 

Proposed part 5 

section or paragraph 

Based in whole or in 

part on 38 CFR part 

3 section or 

paragraph 

5.331(c) ..................... 3.350(f)(2)(vii). 

5.331(c)(1) ................. 3.350(f)(2)(vii) (A). 

5.331(c)(2) ................. 3.350(f)(2)(vii) (B). 

5.331(c)(3) ................. 3.350(f)(2)(vii) (C). 

5.331(d) ..................... 3.350(f)(3) and 

(f)(4)(i). 

5.331(e)(1),(2) ........... 3.350(f)(4). 

5.331(e)(3) ................. 3.350(f)(4)(ii). 

5.331(f) ...................... 3.350(f)(5). 

5.332(a) ..................... 3.350(h)(1) and (2). 

5.332(b) ..................... 3.350(h). 

5.332(c) ..................... 3.350(h) and 

3.352(b). 

5.332(c)(1)(i) .............. 3.350(h)(2) and 

3.352(b)(1)(i). 

5.332(c)(1)(ii) ............. 3.352(b)(1)(ii). 

5.332(c)(1)(iii) ............ 3.352(b)(1)(iii). 

5.332(c)(1)(iv) ............ 3.352(b)(1)(iii). 

5.332(c)(2) ................. 3.352(b)(2) [first 

sentence]. 

5.332(c)(3) ................. 3.352(b)(2) [second 

sentence]. 

5.332(c)(4) ................. 3.352(b)(2) [third 

sentence]. 

5.332(c)(5) ................. 3.352(b)(3). 

5.332(c)(6) ................. 3.352(b)(4). 

5.333 [introduction] .... 3.350(i). 

5.333(a) ..................... 3.350(i)(1). 

5.333(b) ..................... 3.350(i)(2). 

5.334 .......................... New. 

5.335(a) ..................... 3.401(a)(1). 

5.335(b) ..................... 3.401(a)(1). 

5.336(a)(1) ................. 3.401(a)(3). 

5.336(a)(2) ................. 3.401(a)(3). 

5.336(b) ..................... 3.501(b)(3). 

5.337 .......................... 3.401(a)(2). 

5.340 .......................... 3.370. 

5.341 .......................... 3.371. 

5.342 .......................... 3.372. 

5.343 .......................... 3.374. 

5.344 .......................... 3.375. 

5.345 .......................... 3.378. 

5.346(a) ..................... 3.959. 

5.346(b)(1)(i) .............. 3.350(g)(1). 

5.346(b)(1)(ii) ............. 3.401(g). 

5.346(b)(2) ................. 3.350(g)(2). 

5.347 .......................... 3.343(b). 

5.350 .......................... 3.361. 

5.351 .......................... 3.361(a)(2), 3.400(i). 

5.352 .......................... 3.362. 

5.353 .......................... 3.363. 

5.360(a) ..................... New. 

5.360(b) ..................... 3.381(a). 

5.360(c)(1) ................. 3.381(e)(1). 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules 62007 

Proposed part 5 

section or paragraph 

Based in whole or in 

part on 38 CFR part 

3 section or 

paragraph 

5.360(c)(2) ................. 3.381(e)(2). 

5.360(c)(3) ................. 3.381(d)(5). 

5.360(c)(4) ................. 3.381(d)(6). 

5.360(d)(1)–(3) .......... 3.381(b). 

5.360(d)(4) ................. 3.381(c) [first 

sentence]. 

5.360(e) [introduction] 3.381(c) [second 

sentence]. 

5.360(e)(1) ................. 3.381(d)(1). 

5.360(e)(2) ................. 3.381(d)(2). 

5.360(e)(3) ................. 3.381(d)(3). 

5.360(e)(4) ................. 3.381(d)(4). 

5.360(e)(5) ................. 3.381(e)(3). 

5.360(e)(6) ................. 3.381(e)(4). 

5.360(e)(7) ................. 3.381(f). 

5.361(a) ..................... 3.360(a). 

5.361(b) ..................... 3.360(c). 

5.361(c) ..................... 3.360(b). 

5.362 .......................... New. 

5.363 .......................... 3.359. 

5.365 .......................... 3.300. 

5.366 .......................... 3.385. 

5.367 .......................... 3.357. 

5.368 .......................... 3.315(b), (c). 

Readers who use this table to compare 

the proposed provisions with the 

existing regulatory provisions, and who 

observe a difference between them, 

should consult the text that appears 

later in this document for an 

explanation of significant changes in 

each regulation. Not every paragraph of 

every current part 3 section regarding 

the subject matter of this rulemaking is 

accounted for in the table. In some 

instances, other portions of the part 3 

sections that are contained in these 

proposed regulations appear in subparts 

of part 5 that are being published 

separately for public comment. For 

example, a reader might find a reference 

to paragraph (a) of a part 3 section in the 

table, but no reference to paragraph (b) 

of that section because paragraph (b) 

will be addressed in a separate NPRM. 

The table also does not include 

provisions from part 3 regulations that 

will not be carried forward to part 5. 

Such provisions are discussed 

specifically under the appropriate part 5 

heading in this preamble. Readers are 

invited to comment on the proposed 

part 5 provisions and on our proposals 

to omit those part 3 provisions from part 

5. 

Content of Proposed Regulations 

Special Monthly Compensation 

5.320 Determining Need for Regular 

Aid and Attendance 

Proposed § 5.320 is derived primarily 

from current § 3.352(a). Although 

§ 3.352(a) by its terms applies only to 

determinations of the need for regular 

aid and attendance under § 3.351(c)(3) 

(increased DIC based on need for aid 

and attendance), in practice VA applies 

§ 3.352(a) as the general criteria for 

determining the need for regular aid and 

attendance in every context for which 

benefits are premised on such a need 

and administered under part 3. This is 

reflected in part by the reference to the 

§ 3.352(a) criteria in § 3.351(c)(3), which 

applies to a veteran, spouse, surviving 

spouse, or parent, and in § 3.350(b)(3), 

which refers to § 3.352(a) for the criteria 

to determine whether a veteran qualifies 

for special monthly compensation 

(SMC) based on the need for regular aid 

and attendance. In part 5, we would 

explicitly make these criteria generally 

applicable to all determinations of the 

need for regular aid and attendance, 

and, in so doing, will simplify and 

clarify the criteria. 

Current § 3.351(b) uses the term 

‘‘helpless’’ to mean requiring ‘‘the 

regular aid and attendance of another 

person,’’ but the Veterans’ Housing 

Opportunity and Benefits Improvement 

Act of 2006 amended certain sections of 

title 38, United States Code, to replace 

the term ‘‘helpless’’ with the term 

‘‘significantly disabled’’ (and similar 

terminology) when describing veterans, 

dependents, or survivors who need 

regular aid and attendance benefits. See 

Public Law 109–233, sec. 502, 120 Stat. 

398, 415 (June 15, 2006). Despite the 

change in terminology, the Act did not 

make any substantive change to title 38. 

See Explanatory Statement on 

Amendment to Senate Bill, S. 1235, as 

amended, 152 Cong. Rec. H2976, H2978 

(daily ed. May 22, 2006). The proposed 

part 5 criteria for needing regular aid 

and attendance, however, would not 

reference the statutory requirement that 

a person be ‘‘helpless’’ or ‘‘so 

significantly disabled’’ as to regularly 

need aid and attendance. The statutory 

term serves in § 3.352(a) as the basis for 

the application of the various criteria 

that can serve as the basis for a finding 

that an individual is in need of regular 

aid and attendance, which would be 

listed in proposed § 5.320(a)(1)–(6). But 

those criteria clearly apply only if a 

person is disabled and, as a result, the 

reference to being ‘‘so significantly 

disabled’’ is superfluous. We would, 

instead, simply state that a person needs 

regular aid and attendance if that person 

is unable to perform the functions listed 

in paragraphs (a)(1)–(6). 

In addition, current § 3.351(b) uses 

the term ‘‘require’’ rather than ‘‘need’’ 

regular aid and attendance. We propose 

to use ‘‘need’’ in proposed part 5. The 

words ‘‘need’’ and ‘‘require’’ have 

identical meanings, but part 3 uses 

‘‘need’’ more than 60 times when 

referring to regular aid and attendance, 

but uses ‘‘require’’ only five times. In 

the authorizing statutes, 38 U.S.C. 

1114(l) uses the phrase ‘‘in need of 

regular aid and attendance’’, while 38 

U.S.C. 1115(1)(E) and 1502(b) use ‘‘need 

or require the regular aid and 

attendance.’’ The word ‘‘need’’ is 

perfectly clear, and more easily 

understood than ‘‘require’’ or ‘‘need or 

require,’’ and using the word ‘‘need’’ 

will not result in any substantive 

difference between parts 3 and 5. 

We would also omit the phrase ‘‘of 

another person.’’ In current part 3, the 

phrase inconsistently appears after ‘‘aid 

and attendance.’’ It is in current 

§§ 3.25(e) and 3.351(b), but not in 

§§ 3.350, 3.351(c), or 3.352. The statutes 

authorizing benefits based on needing 

‘‘regular aid and attendance’’ do not 

consistently use the phrase ‘‘of another 

person.’’ Compare, e.g., 38 U.S.C. 

1114(l), (m), (r) (not using ‘‘of another 

person’’), with 38 U.S.C. 1115(1)(E) 

(using ‘‘of another person’’). All of the 

criteria for determining need for aid and 

attendance listed in § 3.352, ‘‘Criteria for 

determining aid and attendance and 

‘permanently bedridden,’’’ concern 

tasks that must be done by someone 

other than the person needing aid and 

attendance. Therefore, the phrase ‘‘of 

another person’’ is unnecessary. 

In proposed § 5.320(a) we would 

specifically note that the need for 

regular aid and attendance need not be 

permanent. There is no express 

statutory requirement that a person’s 

need for regular aid and attendance is 

permanent in nature, and the proposed 

rule is consistent with the current 

regulation. Indeed, to impose a 

‘‘permanent’’ requirement might conflict 

with 38 U.S.C. 1114(l), which 

distinguishes a veteran’s need for 

regular aid and attendance from a 

veteran being ‘‘permanently bedridden,’’ 

as further explained later in this NPRM. 

As noted above, proposed 

§ 5.320(a)(1)–(6) would set forth the 

basic criteria to establish the need for 

regular aid and attendance, which are 

derived from current § 3.352(a). The 

language describing the criteria in the 

proposed paragraph is plainer and more 

modern than that of the current 

regulation, but there are no substantive 

differences. In particular, current 


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§ 3.352(a), ‘‘Basic criteria for regular aid 

and attendance and permanently 

bedridden,’’ specifies that ‘‘physical or 

mental’’ incapacity necessitates 

assistance in protecting ‘‘the claimant 

from hazards or dangers incident to his 

or her daily environment.’’ In the 

proposed rule, we have omitted the 

phrase ‘‘physical or mental.’’ The term 

‘‘incapacity’’ needs no such 

qualification because the only possible 

incapacitating causes of a person’s 

inability to avoid hazards or dangers are 

physical or mental. Thus, the phrase 

‘‘physical or mental’’ is superfluous. 

Proposed § 5.320(b) reflects VA’s 

policy to consider a person who is 

bedridden to also be a person who 

needs regular aid and attendance. 

Although the title of current § 3.352 and 

the caption to § 3.352(a) refer to the term 

‘‘permanently bedridden,’’ the text of 

§ 3.352(a) describes ‘‘bedridden’’ status 

without such qualification. Indeed, 38 

U.S.C. 1114(l) contains the sole 

statutory requirement that a veteran be 

‘‘permanently bedridden,’’ stating that a 

veteran is eligible for special monthly 

compensation at the rate set forth in 

section 1114(l) if the veteran ‘‘is 

permanently bedridden or with such 

significant disabilities as to be in need 

of regular aid and attendance.’’ That 

requirement would be covered by 

§ 5.324(d). 

Thus, proposed § 5.320(b) implements 

the general statutory criterion, 

appearing in several places in title 38, 

United States Code, that a person who 

is so significantly disabled as to need 

regular aid and attendance is entitled to 

certain VA benefits. It is reasonable to 

assume that a person who is bedridden 

due to disability has such need. 

Therefore, proposed part 5, like part 3, 

would consider a person who is 

bedridden to be one who needs regular 

aid and attendance. 

Proposed § 5.320(b) is based on the 

rules governing ‘‘bedridden’’ 

determinations under current § 3.352(a). 

Current § 3.352(a) includes a statement 

that having ‘‘voluntarily taken to bed’’ 

would not support a finding of 

bedridden status. We propose to reword 

this requirement by stating that the 

person ‘‘must remain in bed due to his 

or her disability or disabilities,’’ thus 

eliminating the possibility that 

voluntary bed rest could qualify. We 

would add that the bed rest must be 

based on medical necessity, but clarify 

that such necessity cannot be for 

convalescence or cure. These statements 

are consistent with the current rule and 

will not lead to a different result in 

cases adjudicated under part 5. 

The last two sentences of § 3.352(a) 

state, ‘‘Determinations that the veteran 

is so helpless, [sic] as to be in need of 

regular aid and attendance will not be 

based solely upon an opinion that the 

claimant’s condition is such as would 

require him or her to be in bed. They 

must be based on the actual requirement 

of personal assistance from others.’’ 

Because the proposed regulation makes 

clear that a person who is bedridden 

also is in need of aid and attendance, we 

will not repeat these sentences in part 

5. 

5.321 Additional Compensation for 

Veteran Whose Spouse Needs Regular 

Aid and Attendance 

Current § 3.351(a)(2) states that a 

veteran in receipt of disability 

compensation may be eligible for 

increased compensation if he or she has 

a spouse who is in need of regular aid 

and attendance. The authorizing statute, 

38 U.S.C. 1115, requires a veteran to be 

entitled to disability compensation and 

to have a disability rating of not less 

than 30 percent to qualify for this 

additional benefit. We propose to 

include this language in § 5.321(a) 

because it reflects the current statutory 

criteria and will help readers locate the 

eligibility requirements. 

Current § 3.351(c) contains the general 

criteria for determining whether a 

dependent spouse needs regular aid and 

attendance. We propose to reorganize 

these criteria in proposed § 5.321(b) and 

(c). Proposed paragraph (b) would be 

titled ‘‘Automatic eligibility’’; it would 

explain that a spouse would be found to 

be in need of regular aid and attendance 

if he or she is blind or has a serious 

visual impairment or is a patient in a 

nursing home due to mental or physical 

incapacity. Proposed paragraph (c) 

would be entitled ‘‘Factual need’’; it 

would state the principle found in 

current paragraph (c)(3) that a spouse 

will be considered in need of regular aid 

and attendance if a factual need is 

shown under proposed § 5.320. 

Under current § 3.351(c), a ‘‘spouse 

* * * will be considered in need of 

regular aid and attendance if he or she: 

(1) Is blind or so nearly blind as to have 

corrected visual acuity of 5/200 or less, 

in both eyes, or concentric contraction 

of the visual field to 5 degrees or less.’’ 

Although not stated explicitly, it is longstanding VA practice to require that the 

concentric contraction be bilateral. The 

1945 Schedule for Rating Disabilities 

states, ‘‘With visual acuity 5/200 or less 

or the visual field reduced to 5 degrees 

contraction, in either event in both eyes, 

the question of entitlement on account 

of regular aid and attendance will be 

determined on the facts in the 

individual case.’’ 1945 Rating Schedule, 

page 53–54, para.10 (4/1/1946) 

(emphasis added); see also 38 CFR 4.79 

(substantially the same). Requiring 

bilateral concentric contraction of the 

visual field to 5 degrees bilaterally 

implements the ‘‘so nearly blind’’ 

criterion of need for regular aid and 

attendance in the authorizing statute. 

See 38 U.S.C. 1115(1)(E). The current 

VA rating schedule rates unilateral 

concentric contraction of the visual field 

to 5 degrees as 30 percent disabling; 

bilateral concentric contraction of the 

visual field to 5 degrees is rated 100 

percent disabling. 38 CFR 4.84a, 

diagnostic code 6080 (2007). These 

rating criteria demonstrate that 

unilateral contraction of the visual field 

to 5 degrees cannot rationally be 

considered ‘‘so nearly blind’’ as to need 

regular aid and attendance within the 

meaning of 38 U.S.C. 1115(1)(E). 

Although § 4.79 and diagnostic code 

6080 apply to rating the vision of 

veterans, there is no rational basis to 

construe the criterion ‘‘so nearly blind’’ 

differently for veterans and for their 

spouses. Hence, we propose to clarify 

that the concentric contraction criterion 

applies to both eyes. Stating the visual 

field criterion of the need as bilateral in 

proposed § 5.321(b) merely states 

current VA practice explicitly. It makes 

no substantive change. 

We propose to cite 38 U.S.C. 1115 as 

the authority for proposed § 5.321, to 

show the actual authority for the criteria 

for need of a spouse for regular aid and 

attendance, especially regarding the 

nursing home and the blindness criteria. 

The authority citation for current 

§ 3.351(c), is stated as 38 U.S.C. 1502(b), 

but this is incomplete. Section 1502(b) 

is the authority for those criteria in the 

context of pension. Section 1115(1)(E) 

authorizes special monthly 

compensation to a veteran with a spouse 

who needs regular aid and attendance. 

Hence, we have cited section 1115 as 

authority for proposed § 5.321. 

The criteria to establish a dependent 

spouse’s need for regular aid and 

attendance for purposes of a veteran’s 

entitlement to additional compensation, 

set forth in 38 U.S.C. 1115(1)(E), include 

that the spouse be ‘‘blind, or so nearly 

blind or significantly disabled as to 

need or require the regular aid and 

attendance of another person.’’ 

However, the implementing regulation, 

38 CFR § 3.351(c)(1), defines ‘‘blind or 

so nearly blind’’ as ‘‘to have corrected 

visual acuity of 5/200 or less, in both 

eyes, or concentric contraction of the 

visual field to 5 degrees or less.’’ These 

criteria are similar to the criteria in 38 

U.S.C. 1114(l), which provides special 

monthly compensation to a veteran with 

such visual disability. 


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We note that it has been VA’s 

longstanding practice to apply these 

criteria. The ‘‘Veterans Disability 

Compensation and Survivor Benefits 

Act of 1976,’’ Public Law 94–433, sec. 

102, 90 Stat. 1375 (Sep. 30, 1976), 

authorized VA to provide additional 

compensation to veterans whose 

spouses needed regular aid and 

attendance, and that legislation was the 

source of what is now 38 U.S.C. 

1115(1)(E). In 1976, VA amended 

§ 3.351(a) to authorize such additional 

compensation. 41 FR 55872, 55874 (Dec. 

23, 1976); VA Transmittal Sheet 617 

(Oct. 1, 1967). However, the criteria for 

blindness, 5/200 visual acuity or 5 

degrees concentric contraction of the 

visual field, remained unchanged. In 

light of VA’s consistent, long-standing 

use of these criteria in this context, we 

propose to use the criteria in § 5.321. 

In promulgating § 3.351(c)(1), VA 

adopted these more specific criteria, 

rather than the vague and difficult-toapply criteria in 38 U.S.C. 1115(1)(E), 

because they are more objective and 

easier to apply. Moreover, this 

definition of ‘‘blind or so nearly blind’’ 

does not limit the veteran’s entitlement 

to additional compensation under 

section 1115(1)(E), because § 5.321(c) 

allows the spouse to be considered in 

need of regular aid and attendance 

based on the facts in the individual 

case, regardless of his or her vision. This 

provision implements the language in 

38 U.S.C. 1115(1)(E) that authorizes VA 

to pay such additional compensation 

when the veteran’s spouse is ‘‘so * * * 

significantly disabled as to need or 

require the regular aid and attendance of 

another person.’’ 

5.322 Special Monthly 

Compensation—General Information 

and Definitions of Disabilities 

Proposed § 5.322 would define 

disabilities that establish entitlement to 

SMC under the sections that follow that 

are not defined in those sections. 

Proposed paragraph (a) states that SMC 

is available for veterans who need 

regular aid and attendance, are 

bedridden, suffer certain serviceconnected disabilities or combinations 

of disabilities (considering also certain 

nonservice-connected disabilities in 

determining entitlement to certain SMC 

rates), or have a spouse who needs 

regular aid and attendance. The 

paragraph identifies by cross reference 

the regulations that address the 

potential contribution of a nonserviceconnected disability to entitlement to 

SMC. This paragraph also informs the 

user where and how to find the 

monetary rates of SMC. 

Proposed paragraphs (b) through (g) 

would consolidate principles that apply 

to establishing particular levels of 

compensation throughout current 

§ 3.350. By consolidating these 

principles in proposed § 5.322 and, 

thereafter, referencing the particular 

paragraph where applicable, it will be 

easier for readers to find specific rules. 

Title 38, United States Code, provides 

SMC for ‘‘anatomical loss or loss of use 

of’’ certain body parts. 38 U.S.C. 

1114(k)–(p). Current § 3.350 variously 

uses the phrases ‘‘anatomical loss or 

loss of use [of the named body part]’’ 

and ‘‘loss or loss of use [of the named 

body part].’’ These phrases mean the 

same thing. Where § 3.350 uses ‘‘loss of 

[a named body part]’’, as contrasted 

with ‘‘loss of use of [a named body 

part],’’ ‘‘loss of’’ means anatomical loss, 

consistent with their statutory 

derivation. Compare, e.g., 38 U.S.C. 

1114(k) (‘‘anatomical loss or loss of use 

of one or more creative organs’’) with 

§ 3.350(a)(1)(i) (‘‘Loss of a creative organ 

will be shown by acquired absence of 

one or both testicles * * * ovaries or 

other creative organ’’). For consistency 

within part 5, we propose to use 

‘‘anatomical loss or loss of use [of the 

named body part]’’ and ‘‘anatomical loss 

[of the named body part]’’ throughout 

part 5. 

We propose to define the loss of use 

of a hand or a foot at proposed § 5.322 

paragraphs (b) and (c), respectively. 

These definitions are derived from 

current § 3.350(a)(2). Current 

§ 3.350(a)(2)(i)(a) [sic] refers to 

‘‘complete ankylosis of two major joints 

of an extremity,’’ but does not define 

‘‘major joints.’’ VA has defined the 

major joints in 38 CFR 4.45(f), and we 

propose to incorporate this definition 

into paragraphs (b) and (c) regarding the 

upper and lower extremity, respectively, 

as an aid to readers. Current 

§ 3.350(a)(2)(i)(a) [sic] also refers to 

‘‘[e]xtremely unfavorable complete 

ankylosis of the knee’’ without defining 

this term. VA has defined extremely 

unfavorable ankylosis of the knee in 38 

4.71a, Diagnostic Code 5256, and we 

propose to incorporate this definition 

into paragraph (c)(1) as an aid to 

readers. 

Current § 3.350(a)(2)(i) states the 

amount of function of a hand or foot of 

which there is loss of use as follows: 

‘‘Loss of use of a hand or a foot will be 

held to exist when no effective function 

remains other than that which would be 

equally well served by an amputation 

stump * * * with use of a suitable 

prosthetic appliance.’’ This means the 

function of the hand or foot is less than 

or equal to the function of a prosthesis 

attached to the amputation stump. 

Proposed § 5.322(b) and (c) have 

restated the extent of function that 

qualifies as loss of use of a hand or foot, 

respectively, as ‘‘functions no better 

than a prosthesis would function if 

attached to the [arm or leg] at a point of 

amputation below the [elbow or knee].’’ 

‘‘[F]unctions no better than’’ means the 

same thing as ‘‘no effective function 

remains other than that which would be 

equally well served by.’’ No substantive 

change is intended. 

Proposed § 5.322(d) is based on 

current § 3.350(c)(2). The first sentence 

of current § 3.350(c)(2) states that in 

determining whether there is natural 

elbow or knee action for purposes of 

§ 3.350(c)(1)(ii) and (iii), VA will 

consider whether use of the proper 

prosthetic appliance requires natural 

use of the joint or whether necessary 

motion is otherwise controlled, in that 

the muscles affecting joint motion, if not 

already atrophied, will become so. In 

proposed § 5.322(d), we would explain 

the effect of VA’s consideration of 

whether the veteran is able to use a 

prosthesis that requires the natural use 

of the elbow or knee joint. The 

regulation explains that natural elbow 

or knee action is prevented when a 

prosthesis is in place if the veteran is 

unable to use a prosthesis that requires 

the natural use of the elbow or knee 

joint, or if the veteran is unable to move 

such a joint, as in complete ankylosis or 

complete paralysis. In order to simplify 

the rule, we propose not to repeat that 

VA will consider whether when using a 

proper prosthesis necessary motion is 

controlled by means other than natural 

use of the joint so that the muscles 

affecting joint motion, if not already 

atrophied, will become so. This 

language is not contained in 38 U.S.C. 

1114 and does not aid in determining 

whether use of a prosthesis prevents 

natural elbow or knee action with a 

prosthesis in place. 

Current § 3.350(c)(2) refers to ‘‘no 

movement in the joint, as in ankylosis 

or complete paralysis.’’ In proposed 

§ 5.322(d), we have inserted the word 

‘‘complete’’ before ‘‘ankylosis’’ to clarify 

the intent of the current rule that the 

ankylosis must be complete. 

Proposed § 5.322(e) is derived from 

current § 3.350(d). VA will consider a 

veteran prevented from wearing a 

prosthesis due to amputation of an 

extremity (arm or leg) near the shoulder 

or hip if the anatomical loss prevents 

the use of a prosthesis, and 

reamputation at a higher level that 

permits the use of a prosthesis is not 

possible. If a prosthesis cannot be worn 

at the present level of amputation but 

could be worn if there were a 

reamputation at a higher level, VA will 


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consider the veteran not to have an 

anatomical loss of the extremity (arm or 

leg) so near the shoulder or hip as to 

qualify for SMC under 38 U.S.C. 

1114(n). Instead, VA will consider the 

veteran eligible only for SMC based on 

anatomical loss or loss of use of the arm 

at a level, or with complications, 

preventing natural elbow action with a 

prosthesis in place. 

We note that, like current § 3.350(d), 

§ 3.350(f) requires anatomical loss of the 

leg or arm so near the hip or shoulder 

as to prevent the use of prosthetic 

appliance. We propose to make § 5.322 

applicable to the part 5 counterparts to 

these provisions as well, instead of 

limiting its application to the 

counterparts of § 3.350(d), in an effort to 

ensure consistent use and application of 

terminology and promote consistency in 

VA decisionmaking. 

Proposed § 5.322(f) is consistent with 

the second sentence of current 

§ 3.350(b)(2). The rule bars payment of 

SMC to a veteran who has actual visual 

acuity better than 5/200 but is 

nevertheless assigned a disability rating 

based on visual acuity of 5/200. The 

rating schedule for impaired visual 

acuity, 38 CFR 4.84a, Table V, provides 

for rating based on impaired visual 

acuity of 5/200 to veterans with 

impaired visual acuity ranging between 

5/200 and more than 10/200. See 38 

CFR 4.83. However, SMC under 38 

U.S.C. 1114 is available only to a 

veteran with visual acuity of 5/200 or 

less. Therefore, proposed § 5.322(f), like 

current § 3.350(b)(2), requires 

adjudicators to ascertain that a veteran 

in receipt of disability compensation 

based on visual acuity of 5/200 actually 

suffers from impaired visual acuity of 5/ 

200 or less. 

We propose to include the definition 

of loss of use or blindness of an eye, 

having only light perception, at 

proposed § 5.322(g). This definition is 

derived from current § 3.350(a)(4). We 

propose to restate ‘‘considered of 

negligible utility’’ contained in current 

§ 3.350(a)(4) as ‘‘considered 

insignificant usefulness of sight’’ in 

§ 5.322(g). Readers might misinterpret 

‘‘considered of negligible utility’’ in the 

current regulation as meaning that a 

report showing visual acuity difficulties 

at distances less than 3 feet would make 

the result of the visual examination not 

useful in determining entitlement to 

SMC. The words ‘‘negligible utility’’ 

means insignificant usefulness of sight. 

The proposed restatement will make 

clear that the regulation refers to the 

disabling nature of a veteran’s visual 

acuity and not to the evidentiary weight 

of a visual examination report. 

5.323 Special Monthly Compensation 

Under 38 U.S.C. 1114(k) 

Proposed § 5.323 is derived from 

current § 3.350(a). The proposed 

regulation would be titled ‘‘Special 

monthly compensation under 38 U.S.C. 

1114(k).’’ 

In § 5.323(a)(8), we have clarified that 

treatment of breast tissue with radiation 

does not include diagnostic procedures 

that require the use of radiation. We do 

not believe that Congress intended to 

include diagnostic procedures such as a 

mammogram or other x-ray examination 

as a basis for compensation under 38 

U.S.C. 1114(k), because such 

examinations are routinely performed. 

Proposed § 5.323(b) is derived from 

the remaining three sentences in current 

§ 3.350(a). 

Proposed § 5.323(c) is derived from 

current § 3.350(a)(1). Proposed 

§ 5.323(c)(1) defines a ‘‘creative organ’’ 

as an organ directly involved in 

reproduction. In VAOPGCPREC 2–2000, 

65 FR 33422 (May 23, 2000), VA’s 

General Counsel noted that the term 

‘‘creative organ’’ is not defined in 38 

U.S.C. 1114(k), nor in any other 

provision of title 38, United States Code. 

It is unique to section 1114(k) and is 

used in current § 3.350(a)(1) without 

definition. After examining the issue, 

the General Counsel determined that by 

using the term ‘‘creative organ’’ 

Congress meant procreative, or 

reproductive, organs. The proposed 

definition is consistent with 

VAOPGCPREC 2–2000. 

Proposed § 5.323(c)(2) restates the 

first sentence of current § 3.350(a)(1)(i). 

The second sentence of current 

§ 3.350(a)(1)(i) is restated in proposed 

§ 5.323(c)(3)(i) through (iii). 

Current 38 CFR 3.350(a)(1)(i)(c) states 

that loss of use of a creative organ may 

be shown ‘‘when a biopsy, 

recommended by a board including a 

genitourologist and accepted by the 

veteran, establishes the absence of 

spermatozoa.’’ We propose to use 

somewhat different language in 

§ 5.323(c)(3)(iii) as follows: ‘‘Absence of 

spermatozoa proven by biopsy 

performed with the informed consent of 

the veteran.’’ We note that the reference 

to ‘‘a board’’ in the current rule relates 

to VA’s former procedure of having a 

board of three VA employees (including 

a physician) adjudicate claims. Because 

this is no longer VA’s procedure, and 

because any physician or VA 

adjudicator may order a biopsy, we 

propose not to include that reference in 

§ 5.323(c)(3)(iii). The phrase ‘‘accepted 

by the veteran’’ might be misconstrued 

to mean that a veteran may accept or 

reject biopsy results. The intent of 

§ 3.350(a)(1)(i)(c) was to clarify that 

undergoing a biopsy is voluntary and 

requires the veteran’s informed consent. 

Proposed § 5.323(c)(3)(iv) is a new 

provision that states that loss of use of 

a creative organ exists when medical 

evidence shows that, due to injury or 

disease, reproduction is not possible 

without medical intervention. Although 

essentially the definition of loss of use, 

this provision is based on VA’s longstanding policy of awarding SMC if the 

medical evidence of record shows the 

loss of erectile power secondary to a 

disease process such as diabetes or 

multiple sclerosis in a male veteran or 

a condition of the reproductive tract, 

such as retrograde ejaculation or 

spermatozoa dumping into the bladder 

in a male veteran or the removal of a 

fallopian tube in a female veteran, that 

results in the loss of use of a creative 

organ. 

We also propose to include in 

§ 5.323(c)(3)(iv)(A) a statement 

reflecting long-standing VA policy that 

would allow for the award of SMC 

under 38 U.S.C. 1114(k) for the 

anatomical loss or loss of use of a 

creative organ even when one paired 

creative organ is capable of 

reproduction and the other is not. Both 

38 U.S.C. 1114(k) and 38 CFR 3.350(a) 

are silent regarding this type of medical 

condition. Adding this rule to the 

proposed regulation is beneficial to 

veterans. 

In § 5.323(c)(4), we propose to state 

that payment of SMC would be proper 

under 38 U.S.C. 1114(k) for loss of use 

of a creative organ even in instances 

when a veteran uses prescription 

medications or mechanical devices to 

treat erectile dysfunction. Veterans 

should not be prevented from receiving 

SMC when they are receiving treatment 

that corrects an otherwise compensable 

condition to some degree, particularly 

since the improvement in the condition 

may only be partial and because the loss 

of use may return when the treatment is 

suspended. 

In § 5.323(c)(5), we propose to state 

clearly that SMC under 38 U.S.C. 

1114(k) would be payable for a serviceconnected anatomical loss of a creative 

organ even if it is preceded by a 

nonservice-connected loss of use of that 

same organ. In addition, in proposed 

§ 5.323(c)(5)(i) through (iv), we have 

included examples illustrating this 

principle. SMC should be granted even 

if the veteran was first unable to 

procreate for nonservice-connected 

reasons. Congress has provided two 

bases for SMC, anatomical loss or loss 

of use. Compensation for serviceconnected anatomical loss is authorized 

even though there was a preexisting, 


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nonservice-connected loss of use. See 

VAOPGCPREC 5–89, 54 FR 38033 (Sept. 

14, 1989). According to the legislative 

history of 38 U.S.C. 1114(k), the purpose 

of SMC for anatomical loss or loss of use 

of a creative organ is to account for 

psychological factors as well as the loss 

of physical integrity. See id. Even where 

a veteran has previously suffered the 

anatomical loss of certain creative 

organs that results in the loss of use of 

the remaining creative organs, the 

psychological impact and the loss of 

physical integrity resulting from the 

later anatomical loss of one of the 

remaining organs cannot be ignored. An 

award of SMC under these 

circumstances is consistent with the 

terms of the statute and precedent 

opinions by VA’s General Counsel. See 

VAOPGCPREC 93–90, 56 FR 1220 (Jan. 

11, 1991). 

Proposed § 5.323(c)(6) and (7) are 

derived from current § 3.350(a)(1)(iii) 

and (iv) respectively. We propose not to 

repeat the specific language from 

§ 3.350(a)(1)(ii) in part 5. Current 

§ 3.350(a)(1)(ii) addresses the issue of 

establishing service connection for ‘‘loss 

or loss of use’’ of a creative organ 

resulting from wounds or other trauma 

sustained in service or resulting from 

operations in service for the relief of 

other conditions for which the creative 

organ becomes incidentally involved. 

This provision is redundant of the basic 

principles for establishing service 

connection for a disability, which are 

contained in current § 3.303 and which 

the eventual part 5 counterpart to that 

regulation will address. 

Current 38 CFR 3.350(a)(1)(iv) states: 

Atrophy resulting from mumps followed 

by orchitis in service is service connected. 

Since atrophy is usually perceptible within 1 

to 6 months after infection subsides, an 

examination more than 6 months after the 

subsidence of orchitis demonstrating a 

normal genitourinary system will be 

considered in determining rebuttal of service 

incurrence of atrophy later demonstrated. 

Mumps not followed by orchitis in service 

will not suffice as the antecedent cause of 

subsequent atrophy for the purpose of 

authorizing the benefit. 

In proposed § 5.323(c)(7), we 

explicitly state the presumption implicit 

in the current rule, § 3.350(a)(1)(iv), by 

using the word ‘‘presumed.’’ We also 

propose not to repeat the third sentence 

of § 3.350(a)(1)(iv) because it is 

redundant. 

In proposed § 5.323(d), we would 

define loss of use of the buttocks. This 

definition is derived from current 

§ 3.350(a)(3). 

In proposed § 5.323(e) and (f), we 

would define deafness and aphonia. 

These definitions are derived from 

current § 3.350(a)(5) and (6), 

respectively. 

5.324 Special Monthly Compensation 

under 38 U.S.C. 1114(l) 

Proposed § 5.324 is derived from 

current § 3.350(b). (Note that the part 5 

counterpart to the second sentence of 

current § 3.350(b)(2) is contained at 

proposed § 5.322(f), discussed above.) 

In proposed § 5.324(a) and (b) we refer 

only to hands and feet, not to 

‘‘extremities.’’ Although current 

§ 3.350(b)(1), refers to loss of use of an 

extremity, the context clearly indicates 

that ‘‘extremity’’ refers only to a hand or 

foot. Section 3.350(a) only discusses the 

loss of use of hands or feet and current 

§ 3.350(a)(2), which is referred to in 

§ 3.350(b)(1), only pertains to loss of use 

of a hand or foot. 

Section 1114(l) of title 38 of the 

United States Code provides for special 

monthly compensation (SMC) if a 

veteran is ‘‘permanently bedridden.’’ 

Current § 3.350(b)(4) implements this 

rule by referring the reader to the 

criteria in current § 3.352(a); however, 

but for its title, § 3.352(a) defines 

‘‘bedridden’’ without requiring 

permanence. It makes sense to define 

‘‘permanently bedridden’’ in proposed 

§ 5.324, among the criteria for the 

benefit authorized by section 1114(l), 

because that is the only statute that 

contains such a criterion. 

For proposed § 5.324, we would adapt 

the language of other current part 3 

regulations that require permanence of a 

condition as a criterion of entitlement to 

a benefit. Part 3 contains three sections 

that characterize permanence of a 

condition. Section 3.350(i)(2) states that 

a veteran is permanently housebound 

because of service-connected disability 

or disabilities when he or she ‘‘is 

substantially confined as a direct result 

of service-connected disabilities to his 

or her dwelling and the immediate 

premises or, if institutionalized, to the 

ward or clinical areas, and it is 

reasonably certain that the disability or 

disabilities and resultant confinement 

will continue throughout his or her 

lifetime.’’ Section 3.351(d)(2), (e), and (f) 

state requirements for Improved 

Disability Pension, DIC, and Improved 

Death Pension, respectively, in 

substantially the same language. 

Section 3.340(b) states, ‘‘Permanence 

of total disability will be taken to exist 

when such impairment is reasonably 

certain to continue throughout the life 

of the disabled person. * * * 

[B]ecoming permanently * * * 

bedridden constitutes permanent total 

disability.’’ In § 3.340(b), VA explicitly 

equates ‘‘permanently bedridden’’ with 

‘‘permanence of total disability.’’ In 

each of these sections, permanence is 

characterized by the continuance of the 

condition described throughout the life 

of the person concerned. 

Proposed § 5.324(d) would authorize 

special monthly compensation to a 

veteran whose service-connected 

disability or disabilities require him or 

her to remain in bed, ‘‘and it is 

reasonably certain that the confinement 

to bed will continue throughout his or 

her lifetime.’’ This definition is simple, 

easy to apply, and consistent with VA’s 

definitions of permanence in other 

similar regulations. 

Paragraphs (d) and (e) of proposed 

§ 5.324 are derived from current 

§ 3.350(b)(4) and (3), respectively. 

Though this reverses the order of the 

‘‘Need for aid and attendance’’ and the 

‘‘Permanently bedridden’’ paragraphs in 

§ 3.350, we have chosen to follow the 

sequence of these criteria in section 

1114(l). Unless the veteran would be 

entitled to an additional allowance 

under 38 U.S.C. 1114(r) (see § 5.332), it 

is more favorable to the veteran to base 

a grant of SMC under 38 U.S.C. 1114(l) 

on permanently bedridden status rather 

than the need for regular aid and 

attendance because SMC based on the 

need for regular aid and attendance 

might be reduced during hospitalization 

(see § 3.552). In the current regulation, 

this information is contained in 

§ 3.350(b)(4), which pertains to 

permanently bedridden status. 

However, we provide the information to 

instruct VA personnel to consider 

whether a veteran is permanently 

bedridden if the veteran meets the 

requirements of the need for regular aid 

and attendance. We anticipate that it 

will be more helpful to VA personnel 

and other readers to place this 

information in proposed § 5.324(e), 

which pertains to the need for regular 

aid and attendance. Furthermore, we 

have made the rule mandatory by 

changing ‘‘should’’ to ‘‘will,’’ to avoid 

confusion about whether or when to 

apply it. 

5.325 Special Monthly Compensation 

at the Intermediate Rate Between 38 

U.S.C. 1114(l) and (m) 

Proposed § 5.325 is derived from 

those provisions in current § 3.350(f)— 

specifically § 3.350(f)(1)(i), (iii), and (vi) 

and § 3.350(f)(2)(i)—that provide for 

entitlement to SMC at the intermediate 

rate between the rates established under 

38 U.S.C. 1114(l) and (m). The statutory 

authority for § 5.325 would be 38 U.S.C. 

1114(p). The introductory paragraph of 

proposed § 5.325 clarifies current 

§ 3.350(f) as it pertains to rounding to 

the nearest dollar the intermediate rate 

between 38 U.S.C. 1114(l) and (m). The 


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current rule, § 3.350(f), requires VA to 

round ‘‘to the nearest dollar.’’ We 

propose to clarify the rule so that it 

requires VA to round ‘‘down to the next 

lower dollar.’’ This accords with the 

statutory requirement to round ‘‘down 

to the nearest dollar.’’ 38 U.S.C. 1114(p). 

We have clarified the same point in 

§§ 5.327, 5.329, and 5.331, which relate 

to other SMC awards. 

Proposed § 5.325(d) is based on 

current § 3.350(f)(2)(i). We propose to 

add concentric contraction of the visual 

field reduced to 5 degrees or less as an 

equivalent alternative to 5/200 visual 

acuity contained in the current 

regulation. Current § 3.350(b)(2) 

provides the basis for treating visual 

acuity of 5/200 and a concentric 

contraction reduced to 5 degrees or less 

as equally disabling. Because the 

provisions of § 3.350 will be divided in 

part 5, we propose to apply this 

principle wherever it is applicable in 

the proposed regulations. 

5.326 Special Monthly Compensation 

Under 38 U.S.C. 1114(m) 

Proposed § 5.326 is derived in part 

from current § 3.350(c). It is also derived 

from those provisions in current 

§ 3.350(f)—specifically § 3.350(f)(1)(ii), 

(iv), and (viii) and § 3.350(f)(2)(ii)—that 

provide for entitlement to SMC at the 

rate authorized by 38 U.S.C. 1114(m). 

Proposed § 5.326(a) is based on 

current § 3.350(c)(1)(i). To determine the 

loss of use of a hand, we have added a 

cross reference to proposed § 5.322, 

which contains the part 5 counterpart to 

current § 3.350(a)(2). The criteria 

contained in § 3.350(a)(2) are used in 

the current regulations to determine loss 

of use of a hand as a basis for SMC 

under 38 U.S.C. 1114(k) and (l). It is 

VA’s long-standing practice to 

determine loss of use of a hand as a 

basis for SMC under 38 U.S.C. 1114(m) 

using the same criteria. This practice 

ensures consistent use and application 

of terminology, which will promote 

consistency in VA decision-making. 

Proposed § 5.326(c) is based on 

current § 3.350(f)(1)(ii). Where the 

current regulation states, ‘‘Anatomical 

loss or loss of use of one foot with 

anatomical loss of one leg so near the 

hip as to prevent use of prosthetic 

appliance. * * *’’, proposed paragraph 

(c) would state, ‘‘* * * with anatomical 

loss of the other leg * * *.’’ VA 

interprets section 1114(m) to mean the 

anatomical loss or loss of use of the foot 

and the anatomical loss of the leg 

described in this section must involve 

opposite limbs. Once a leg is lost, the 

foot on that leg is also lost. Statute and 

regulation already provide SMC for the 

anatomical loss or loss of use of a single 

foot, 38 U.S.C 1114(k); § 3.350(a)(2), and 

for the anatomical loss or loss of use of 

both feet. 38 U.S.C. 1114; 38 CFR 

3.350(b). It would compensate the 

veteran twice for the same disability to 

permit SMC for anatomical loss of a leg 

so near the hip as to prevent use of a 

prosthetic appliance and anatomical 

loss or loss of use of the foot of the same 

leg. VA believes that Congress did not 

intend such a result. 

Proposed § 5.326(i) is based on 

current § 3.350(c)(1)(v), (c)(3), and § 4.79 

of this chapter. For the reasons stated in 

the preamble to proposed § 5.320(a), 

above, we have used the phrase ‘‘need 

regular aid and attendance’’ instead of 

‘‘helpless’’ in § 5.326. We have 

combined sections 3.350(c)(1)(v) and 

3.350(c)(3) in proposed § 5.326(i) 

because § 3.350(c)(3) states how VA 

applies § 3.350(c)(1)(v) when the 

veteran’s visual acuity in both eyes is 

5/200 or the visual field in both eyes is 

reduced to 5 degrees concentric 

contraction. Section 3.350(c)(3) 

mandates that if the veteran’s visual 

acuity in both eyes is 5/200 or the visual 

field in both eyes is reduced to 5 

degrees concentric contraction, VA will 

examine the facts in the individual case 

to determine whether the veteran’s 

vision makes the veteran need regular 

aid and attendance. Proposed § 5.326(i) 

also clarifies by cross reference that VA 

will apply the criteria found at § 5.320 

in determining whether a veteran needs 

regular aid and attendance. Whereas 

current § 3.350(c)(3) only states that the 

need for regular aid and attendance will 

be determined on the facts in the 

individual case, the language in 

§ 5.326(i) notifies veterans and VA 

personnel of the specific criteria. The 

use of these criteria ensures consistent 

use and application of terminology, 

which will promote consistency in VA 

decision-making. The application of the 

criteria for the need for regular aid and 

attendance in § 5.320 to claims for SMC 

under 38 U.S.C. 1114(m) is consistent 

with current VA practice and, therefore, 

the explicit reference to these criteria 

does not constitute a change from the 

current regulation. 

5.327 Special Monthly Compensation 

at the Intermediate Rate Between 38 

U.S.C. 1114(m) and (n) 

Proposed § 5.327 is derived from 

those provisions in current § 3.350(f)— 

specifically § 3.350(f)(1)(v), (vii), (ix), 

and (x) and § 3.350(f)(2)(iii)—that 

provide for entitlement to SMC at the 

intermediate rate between 38 U.S.C. 

1114(m) and (n) for specified 

disabilities. The statutory authority for 

the provisions is 38 U.S.C. 1114(p). 

Paragraphs (a) and (b), the counterparts 

of § 3.350(f)(1)(x) and (f)(1)(v), 

respectively, would require the 

involvement of opposite limbs, as 

described in the discussion of § 5.326(c), 

above, for the same reasons discussed 

above. That is, proposed paragraph (a) 

provides the stated benefit for 

‘‘[a]natomical loss or loss of use of one 

hand with anatomical loss or loss of use 

of the other arm.’’ Proposed paragraph 

(b) provides the stated benefit for 

‘‘[a]natomical loss or loss of use of one 

leg at a level, or with complications, 

preventing natural knee action with 

prosthesis in place with anatomical loss 

of the other leg.’’ 

5.328 Special Monthly Compensation 

Under 38 U.S.C. 1114(n) 

Proposed § 5.328 is derived in part 

from current § 3.350(d). It is also 

derived from current § 3.350(f)(1)(xi) 

which provides for entitlement to SMC 

at the rate authorized by 38 U.S.C. 

1114(n). Proposed § 5.328(a) applies the 

concepts contained in current 

§ 3.350(c)(2) pertaining to natural elbow 

action and SMC under 38 U.S.C. 

1114(m) pertaining to SMC under 

38 U.S.C. 1114(n). The use of this 

language in proposed § 5.328(a) ensures 

consistent use and application of 

terminology, which will promote 

consistency in VA decision-making. 

Proposed § 5.328(b), the counterparts 

of § 3.350(f)(1)(xi), would require the 

involvement of opposite limbs, as 

described in the discussion of § 5.326(c), 

above, for the same reasons discussed 

above. That is, proposed paragraph (b) 

would state, ‘‘Anatomical loss or loss of 

use of one hand with anatomical loss of 

the other arm.’’ 

Current § 3.350(d) states that, ‘‘The 

special monthly compensation provided 

by 38 U.S.C. 1114(n) is payable for any 

of the conditions which follow: 

Amputation is a prerequisite except for 

loss of use of both arms and blindness 

without light perception in both eyes.’’ 

The statute uses the term ‘‘anatomical 

loss.’’ It does not use the term 

‘‘amputation,’’ but the two terms have 

identical meaning. Therefore, we have 

used ‘‘anatomical loss’’ rather than 

‘‘amputation’’ in § 5.328. We have not 

repeated the sentence of § 3.350(d) 

beginning ‘‘Amputation is a prerequisite 

* * *’’ because it is superfluous. It does 

not confer any rights or benefits. The 

paragraphs that contain the prerequisite 

of anatomical loss are explicit as to that 

requirement. It is not a prerequisite in 

those paragraphs that do not require it. 

We propose to clarify the rule in 

current § 3.350(d)(4), which establishes 

entitlement under 38 U.S.C. 1114(n) for 

anatomical loss of both eyes or 

blindness without light perception in 


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both eyes, by stating in proposed 

§ 5.328(e) that benefits under 38 U.S.C. 

1114(n) are available based on 

‘‘anatomical loss of one eye and 

blindness without light perception in 

the other eye.’’ The current regulation 

does not provide for a similar visual 

disability involving the anatomical loss 

of one eye and blindness without light 

perception in the other eye. If there is 

anatomical loss of an eye, there would 

be no light perception in that eye. 

Although current § 3.350(d)(4) does not 

explicitly state the basis for entitlement, 

where there is anatomical loss of one 

eye and blindness without light 

perception in the other eye, there is 

also, obviously, no light perception in 

either eye. Therefore, entitlement to 

38 U.S.C. 1114(n) would be established 

under the current rule. 

5.329 Special Monthly Compensation 

at the Intermediate Rate Between 38 

U.S.C. 1114(n) and (o) 

Proposed § 5.329 is derived from 

current § 3.350(f)(1)(xii), which provides 

for entitlement to SMC at the 

intermediate rate between 38 U.S.C. 

1114(n) and (o) for anatomical loss or 

loss of use of one arm at a level, or with 

complications, preventing natural elbow 

action with prosthesis in place and 

anatomical loss of the other arm so near 

the shoulder as to prevent the use of 

prosthetic appliance. The statutory 

authority for this provision is 38 U.S.C. 

1114(p). 

5.330 Special Monthly Compensation 

Under 38 U.S.C. 1114(o) 

Proposed § 5.330 is derived from 

current § 3.350(e). 

Proposed § 5.330(b) is based on 

current § 3.350(e)(1)(iii). Proposed 

paragraph (b) implements a statutory 

amendment to 38 U.S.C. 1114(o), the 

authority for paragraph (b) of this 

section. Public Law 110–157, sec. 101, 

121 Stat. 1831, (Dec. 26, 2007). 

Specifically, the statutory amendment 

changed the visual acuity criterion of 

section 1114(o) from 5/200 to 20/200. 

Section 5.330(b) would implement this 

statutory change. 

Current § 3.350(e)(2) refers to 

paraplegia and states that paralysis of 

both lower extremities with loss of anal 

and bladder sphincter control will 

entitle a veteran to the maximum rate 

under 38 U.S.C. 1114(o). In § 5.330(d), 

we propose to substitute the phrase 

‘‘loss of use’’ for the current term 

‘‘paralysis.’’ The term ‘‘paralysis’’ is not 

defined for VA purposes. It is a term 

most commonly associated with 

inability to move or have sensation in a 

body part as a result of an injury or a 

disease involving the nervous system. 

This is a narrow definition that does not 

address disabilities as a result of muscle 

or bone damage. The phrase ‘‘loss of 

use’’ is used extensively by VA 

personnel in rating disabilities 

involving the extremities and therefore 

is an appropriate substitute term. The 

phrase ‘‘loss of use’’ will be clearer to 

the reader and will ensure that loss of 

use will entitle a veteran to this level of 

SMC. 

The basis for an award of SMC at the 

maximum rate under 38 U.S.C. 1114(o) 

for a veteran who has loss of anal and 

bladder sphincter control together with 

loss of use of both lower extremities is 

that such a veteran is presumed to be in 

need of regular aid and attendance. As 

such, the veteran is entitled to SMC 

under 38 U.S.C. 1114(l) and 1114(m). A 

veteran with disabilities entitled to two 

or more of the rates provided in 38 

U.S.C. 1114(l) through (n) is entitled to 

compensation under 38 U.S.C. 1114(o). 

This basis for entitlement is restated in 

proposed § 5.330(d). 

We will not repeat § 3.350(e)(4) and 

the third and fourth sentences of 

§ 3.350(e)(3). These sentences are 

redundant of § 3.350(e)(1)(ii), which 

states that the special monthly 

compensation provided by 38 U.S.C. 

1114(o) is payable for ‘‘* * * 

[c]onditions entitling to two or more of 

the rates (no condition being considered 

twice) provided in 38 U.S.C. 1114(l) 

through (n).’’ This provision is 

incorporated in § 5.330(e). 

Current § 3.350(e)(4) reads, ‘‘The 

maximum rate, as a result of including 

helplessness as one of the entitling 

multiple disabilities, is intended to 

cover, in addition to obvious losses and 

blindness, conditions such as the loss of 

use of two extremities with absolute 

deafness and nearly total blindness or 

with severe multiple injuries producing 

total disability outside the useless 

extremities, these conditions being 

construed as loss of use of two 

extremities and helplessness.’’ This 

paragraph essentially re-states 

§ 3.350(e)(1)(ii), which is incorporated 

in § 5.330(e). 

Similarly, the second, third and 

fourth sentences of § 3.350(e)(3) reads: 

This requires, for example, that where a 

veteran who had suffered the loss or loss of 

use of two extremities is being considered for 

the maximum rate on account of helplessness 

requiring regular aid and attendance, the 

latter must be based on need resulting from 

pathology other than that of the extremities. 

If the loss or loss of use of two extremities 

or being permanently bedridden leaves the 

person helpless, increase is not in order on 

account of this helplessness. Under no 

circumstances will the combination of ‘being 

permanently bedridden’ and ‘being so 

helpless as to require regular aid and 

attendance’ without separate and distinct 

anatomical loss, or loss of use, of two 

extremities, or blindness, be taken as 

entitling to the maximum benefit. 

These sentences merely elaborate on 

or rephrase the limitation from current 

§ 3.350(e)(1)(ii) that the same disability 

may not be considered as the basis for 

two rates of SMC. Although some 

explanation of the concepts of current 

§ 3.350(e)(1)(ii) is helpful, the more 

concise discussion proposed in 

paragraphs (e)(1) and (2) of § 5.330 is 

still sufficient and easier to read and 

understand. 

5.331 Special Monthly Compensation 

Under 38 U.S.C. 1114(p) 

Proposed § 5.331 is derived from 

current § 3.350(f)(2) through (f)(5). The 

proposed regulation provides rules 

regarding payment of additional SMC 

under 38 U.S.C. 1114(p). 

Proposed § 5.331(b)(1) is based on 

current § 3.350(f)(2)(iv). Instead of 

referring to blindness in both eyes with 

visual acuity of 5/200 or less, we 

propose to refer to proposed § 5.324(c), 

which provides for SMC for veterans 

with visual acuity of 5/200 or less. Note 

that, as discussed in the preamble to 

proposed § 5.325, we would thereby add 

concentric contraction of the visual field 

to 5 degrees or less as an equivalent 

alternative to 5/200 visual acuity 

contained in current § 3.350(f)(2)(iv). 

Current § 3.350(f)(3) states that 

‘‘additional single permanent disability 

or combinations of permanent 

disabilities independently ratable at 50 

percent or more’’ are bases for 

additional SMC, as specified in the rule. 

In § 5.331(d)(1), we propose to change 

the plural, ‘‘combinations,’’ to the 

singular, ‘‘combination,’’ because the 

intent of § 3.350(f)(3) was to require 

only one combination of disabilities 

independently ratable at 50 percent or 

more for entitlement to the specified 

additional SMC. 

In proposed § 5.331(d)(1) and (e)(2), 

we state VA’s long-standing policy that 

the half-step increase for additional 

permanent independent disability or 

disabilities ratable at 50 percent or 

more, contained in current § 3.350(f)(3), 

may not be paid concurrently with the 

full-step increase for an additional 

single permanent independent 100 

percent disability, contained in current 

§ 3.350(f)(4). This policy is consistent 

with the language of 38 U.S.C. 1114(p), 

which states that if a veteran’s serviceconnected disabilities exceed the 

requirements for a particular rate, VA 

may award an additional full-step or an 

additional half-step to the veteran. The 

full-step and the half-step are alternative 

awards, not cumulative awards. 


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In proposed § 5.331(d)(2) and (e)(3), 

we restate and clarify the rule now in 

§ 3.350(f)(4)(i) affecting entitlement to 

the additional half or whole-step based 

on additional independent disability or 

disabilities ratable at 50 percent or 

more, or the single permanent 

independent 100 percent disability, 

respectively. Current § 3.350(f)(4)(i) 

states, ‘‘Where the multiple loss or loss 

of use entitlement to a statutory or 

intermediate rate between 38 U.S.C. 

1114(l) and (o) is caused by the same 

etiological disease or injury, that disease 

or injury may not serve as the basis for 

the independent 50 percent or 100 

percent unless it is so rated without 

regard to the loss or loss of use.’’ We 

would not use the word ‘‘etiological,’’ 

because it is superfluous and possibly 

confusing. 

‘‘Etiology’’ is a medical term that 

means ‘‘the causes or origin of a disease 

or disorder.’’ Dorland’s Illustrated 

Medical Dictionary 660 (31st ed. 2007). 

So, although diabetic neuropathy, 

Dorland’s 1287, and diabetic 

retinopathy, Dorland’s 1659, might have 

the same etiology, it is not VA’s intent 

that the phrase ‘‘same etiological 

disease’’ preclude the independent 50- 

percent-or-more or the independent 100 

percent benefit if separate and distinct 

disabilities with the same etiology 

otherwise meet the criteria for 

entitlement. Likewise, VA does not 

intend to preclude the benefit if separate 

and distinct injuries have the same 

etiology, for example, a motor vehicle 

accident, or a bomb blast. Simply, in the 

context of § 5.331(d)(2) and (e)(3), the 

phrases ‘‘same etiological disease or 

injury’’ and ‘‘same disease or injury’’ 

mean the same thing. No substantive 

change from the meaning of current 

§ 3.350(f)(4)(i) is intended. 

We would state the rule in 

§ 5.331(d)(2) as it pertains to the 

additional independent disability or 

disabilities ratable at 50 percent or more 

as the basis of entitlement to benefits 

under 38 U.S.C. 1114(p), and in 

§ 5.331(e)(3) as it pertains to the single 

additional independent 100 percent 

disability as the basis of entitlement to 

benefits under 38 U.S.C. 1114(p). By 

doing so, we would reinforce that the 

basis for special monthly compensation 

(under other than section 1114(p)) must 

be independent of the disability or 

disabilities that are independently 

ratable at 50 percent or more, or of the 

single disability that is ratable at 100 

percent. 

Current § 3.350(f)(3), upon which 

proposed § 5.331(d)(3) is based, states 

that graduated ratings for arrested 

tuberculosis ‘‘will not be utilized in this 

connection, but the permanent residuals 

of tuberculosis may be utilized.’’ The 

wording used in the current regulation 

can be improved with respect to its use 

of the language ‘‘will not be utilized in 

this connection’’ and ‘‘may be utilized’’, 

and we will make these improvements 

in part 5. The current part 3 regulation 

is derived from VA Regulation 1236(C) 

(as amended on Oct. 28, 1954) which 

stated in pertinent part, ‘‘Since this 

subdivision contemplates that [the 

additional 50 percent disability] be 

permanent in character, the graduated 

ratings for arrested tuberculosis * * * 

will not be utilized in determining 

entitlement to * * * special monthly 

compensation.’’ We have, therefore, 

reworded the language in proposed 

§ 5.331(d)(3) to reflect that permanent 

residuals of tuberculosis, and not the 

graduated ratings for arrested 

tuberculosis, may serve as the basis for 

SMC under § 5.331(d) because the 

graduated ratings for arrested 

tuberculosis are not intended to be 

permanent. 

Proposed § 5.331(e)(3) is derived from 

current § 3.350(f)(4)(ii), which states the 

same rule, verbatim, as does § 3.350(f)(3) 

quoted above. Proposed § 5.331(e)(3) 

would state the same rule as does 

§ 5.331(d)(3) for the same reasons. 

In proposed § 5.331(f), we have 

restated the triple extremity rule 

contained in current § 3.350(f)(5), which 

provides for compensation for 

anatomical loss or loss of use of three 

extremities. We have clarified that the 

triple extremity rule entitles the veteran 

to the next higher intermediate rate or, 

if the veteran is already entitled to an 

intermediate rate, to the next higher rate 

under 38 U.S.C. 1114. We note that 

current paragraphs § 3.350(f)(2), (f)(3), 

and (f)(5) use different language to 

describe the same result. Compare 38 

CFR 3.350(f)(2)(iv) (‘‘* * * will afford 

entitlement to the next higher 

intermediate rate of if the veteran is 

already entitled to an intermediate rate, 

to the next higher statutory rate * * *.’’) 

with 38 CFR 3.350(f)(5) (‘‘* * * shall 

entitle a veteran to the next higher rate 

without regard to whether that rate is a 

statutory rate or an intermediate rate.’’). 

We have phrased the part 5 

counterparts so that the language is 

consistent throughout proposed § 5.331. 

Likewise, for consistency throughout 

proposed § 5.331, we have changed the 

reference to the maximum rate payable 

for anatomical loss or loss of use of 

three extremities from ‘‘38 U.S.C. 

1114(p)’’ to ‘‘38 U.S.C. 1114(o)’’. In each 

other instance of a statement of the 

maximum rate payable, current 

§ 3.350(f) characterizes the maximum 

payment as ‘‘in no event higher than’’ or 

‘‘not above’’ the rate for 38 U.S.C. 

1114(o). Whereas the rate section 

1114(o) provides and the maximum rate 

section 1114(p) provides are the same 

dollar amount, this change is not 

substantive. 

We also propose to state clearly in 

proposed § 5.331(f) that VA will 

combine the loss of use of whichever 

two extremities will provide the veteran 

with the highest level of SMC payable 

before awarding the next higher rate 

based on the anatomical loss or loss of 

use of a third extremity. Calculating 

SMC in this manner provides the 

highest possible level of SMC. This will 

ensure that VA personnel comply with 

current § 3.103(a) which requires ‘‘a 

decision which grants every benefit that 

can be supported in law.’’ We also 

propose to state VA’s long-standing 

policy that when VA applies the triple 

extremity rule, a veteran is entitled to 

keep any rates payable under 38 U.S.C. 

1114(k) and any rate payable under 38 

U.S.C. 1114(p) for additional 

independent 50 or 100 percent 

disabilities. 

5.332 Additional Allowance for 

Regular Aid and Attendance Under 38 

U.S.C. 1114(r)(1) or for a Higher Level of 

Care Under 38 U.S.C. 1114(r)(2) 

Proposed § 5.332 is derived from 

current §§ 3.350(h) and 3.352(b). Under 

current § 3.350(h)(1), a veteran receiving 

the maximum rate of SMC provided by 

38 U.S.C. 1114(o) or (p), who requires 

regular aid and attendance or a higher 

level of care, is entitled to an additional 

allowance under 38 U.S.C. 1114(r) for 

any period(s) during which he or she is 

not hospitalized at the expense of the 

United States. Current § 3.350(h)(2) is an 

essentially parallel provision that states 

that a veteran, receiving SMC at the 

intermediate rate between 38 U.S.C. 

1114(n) and (o) and at the rate under 38 

U.S.C. 1114(k), who requires regular aid 

and attendance or a higher level of care 

is entitled to an additional allowance 

under 38 U.S.C. 1114(r) for any 

period(s) during which he or she is not 

hospitalized at the expense of the 

United States. Because veterans are 

entitled to the same allowance under 38 

U.S.C. 1114(r), regardless of whether 

they are receiving the maximum rate of 

SMC provided by 38 U.S.C. 1114(o) or 

are receiving SMC at the intermediate 

rate between 38 U.S.C. 1114(n) and (o) 

plus SMC under 38 U.S.C. 1114(k), 

proposed § 5.332(a) combines the 

essentially parallel provisions contained 

in current § 3.350(h)(1) and (2) into a 

single paragraph. 

Current § 3.350(h)(2) differs from 

proposed § 5.332(a) in that § 3.350(h)(2) 

does not state that an allowance under 

38 U.S.C. 1114(r) is payable regardless 


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of whether the need for regular aid and 

attendance or a higher level of care is a 

partial basis for entitlement to SMC at 

the specified rate (the intermediate rate 

between 38 U.S.C. 1114(n) and (o), plus 

the rate under 38 U.S.C. 1114(k)) or is 

based on an independent factual 

determination. However, VA’s longstanding practice is to allow the serviceconnected disabilities that are used to 

establish entitlement at the specified 

rate to also be used to establish a factual 

need for regular aid and attendance or 

a higher level of care for purposes of 

benefits under section 1114(r). 

Proposed § 5.332(b) is derived from 

those portions of current § 3.350(h) that 

refer to veterans who are in need of 

regular aid and attendance and entitled 

to an allowance under 38 U.S.C. 

1114(r)(1). 

Proposed § 5.332(c) is based on those 

portions of current § 3.350(h) that refer 

to veterans who, in addition to being in 

need of regular aid and attendance, 

require a higher level of care and are 

entitled to an allowance under 38 U.S.C. 

1114(r)(2). Proposed § 5.332(c) also 

contains the criteria for the allowance 

under 38 U.S.C. 1114(r)(2) that are 

described in current § 3.352(b). 

There is no part 5 counterpart to 

current § 3.352(b)(5), which states that 

the allowance under 38 U.S.C. 

1114(r)(2) is to be granted only when the 

veteran’s need for a higher level of care 

is clearly established and the amount of 

services required by the veteran on a 

daily basis is substantial. There is no 

statutory requirement under 38 U.S.C. 

1114(r) that the veteran’s need for a 

higher level of care be ‘‘clearly 

established,’’ and there is no reason to 

believe that an evidentiary standard 

different from that set forth in 38 U.S.C. 

5107(b) should apply to proof of the 

need for a higher level of care. Although 

the current regulation does not impose 

a new standard of proof, eliminating the 

‘‘clearly established’’ requirement 

should eliminate the possibility that 

that requirement could be misconstrued 

as an evidentiary rule. Moreover, the 

detailed and specific requirements for 

establishing the need for a higher level 

of care, set forth in paragraphs (c)(3), (4), 

(5), and (6), require evidence of a factual 

nature and sufficiently ensure that the 

need will be based on evidence of 

record. 

Regarding the current requirement 

that the amount of needed services be 

‘‘substantial,’’ the definition of 

‘‘personal healthcare services’’ in 

paragraph (c)(3) describes services that 

clearly establish a greater need than 

would be required simply by § 5.320. 

Hence, there is no need to repeat the 

term, ‘‘substantial,’’ and the application 

of this part 5 rule will not produce a 

different outcome than the application 

of the current rule. 

5.333 Special Monthly Compensation 

Under 38 U.S.C. 1114(s) 

Proposed § 5.333 is a restatement of 

current § 3.350(i). The definition of 

housebound is slightly reworded for 

uniformity throughout part 5. No 

substantive changes are intended. 

5.334 Special Monthly Compensation 

Tables 

We propose to include tables in 

paragraphs (d) through (g) of this section 

as aids in determining the statutory or 

intermediate rate of SMC payable for 

certain combinations of disabilities. 

These tables will make it easier for 

readers of the regulations to determine 

the proper rate of SMC payable for a 

combination of severe disabilities. The 

tables summarize selected regulatory 

text in proposed §§ 5.323 through 5.333, 

which contain more detailed 

information about each benefit. These 

tables are intended to provide a useful 

summary of the regulatory text found in 

current § 3.350. We do not intend these 

tables to confer any rights or benefits in 

addition to those conferred by the 

regulations. 

5.335 Effective Dates—Special 

Monthly Compensation Under §§ 5.332 

and 5.333 

Proposed § 5.335 is derived from a 

reorganization of current § 3.401, which 

establishes the effective date for SMC 

based on the need for regular aid and 

attendance or due to being housebound. 

Current § 3.401(a)(1) states that the 

effective date for an award of regular aid 

and attendance and housebound 

benefits is either the date of receipt of 

claim or the date entitlement arose, 

whichever is later, except as provided in 

current § 3.400(o)(2). The same 

paragraph also states that when an 

award ‘‘based on an original or 

reopened claim is effective for a period 

prior to the date of receipt of the claim, 

the additional * * * compensation 

payable by reason of need for regular aid 

and attendance or housebound status 

shall also be awarded for any part of the 

award’s retroactive period for which 

entitlement to the additional benefit is 

established.’’ To clarify current 

§ 3.401(a)(1), we propose to rewrite this 

regulation in two separate paragraphs 

(a) and (b) in proposed § 5.335 so that 

these two rules can be more easily 

identified and understood. 

Proposed § 5.335(a) would refer to 

§ 3.400(o)(2) of this chapter, and to 

paragraph (b) of § 5.335 as exceptions to 

the general effective date rule stated in 

paragraph (a) of that section. 

In addressing retroactive awards, 

current 3.401(a)(1) addresses pension as 

well as compensation awards. We have 

moved the pension provision to 

proposed § 5.392. See 72 FR 54776 (Sep. 

26, 2007) (effective dates for special 

monthly pension). 

Proposed § 5.335(b) expands the 

scope of current § 3.401(a)(1), which 

provides for retroactive awards of SMC 

for regular aid and attendance or 

housebound status, as noted above. 

Proposed § 5.335(b) would provide for 

retroactive awards of any SMC payment 

when entitlement to the SMC is 

established for any part of a retroactive 

period of compensation based on an 

original or reopened compensation 

claim. It is logical to treat the effective 

date of all SMC awards consistently 

with the effective date of awards of SMC 

for regular aid and attendance or 

housebound status. This is consistent 

with VA policy to grant every benefit to 

which veterans are entitled. See 

proposed § 5.4(b), published in 71 FR 

16457 (Mar. 31, 2006). 

5.336 Effective Dates—Additional 

Compensation for Regular Aid and 

Attendance Payable for a Veteran’s 

Spouse Under § 5.321 

Proposed § 5.336 is derived from a 

reorganization of those parts of current 

§§ 3.401 and 3.501 relating to the 

effective date for SMC for regular aid 

and attendance payable for a veteran’s 

spouse. Current § 3.401(a)(3) states that 

the effective date for an award of 

additional compensation payable to a 

veteran based on the need for regular 

aid and attendance of a spouse is the 

date of receipt of the claim or the date 

entitlement arose, whichever is later. 

The paragraph also states that additional 

compensation for regular aid and 

attendance for a spouse will be awarded 

retroactively if the award is in 

conjunction with a retroactive award of 

compensation based on an original or 

reopened claim, for any part of the 

retroactive period for which entitlement 

to SMC is established. Proposed 

§ 5.336(a)(1) and (2) separate these two 

rules. 

Current § 3.401(a)(3) refers to the 

benefit payable for regular aid and 

attendance of the veteran’s spouse as 

‘‘additional disability compensation.’’ 

Proposed § 5.336(a)(2) specifically 

identifies the benefit as regular aid and 

attendance. 

Current § 3.501(b)(3) states that the 

effective date for the discontinuance of 

additional compensation to a veteran 

based on the need for regular aid and 

attendance of a spouse will be the end 


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of the month in which the award action 

is taken if the need for regular aid and 

attendance has ceased. Proposed 

§ 5.336(b) includes this effective date 

provision. 

5.337 Award of Special Monthly 

Compensation Based on the Need for 

Regular Aid and Attendance During 

Period of Hospitalization 

Current § 3.401(a)(2) states that, when 

the need for regular aid and attendance 

is initially established while a veteran is 

receiving hospital, institutional, or 

domiciliary care, the effective date for 

the award will be the date of discharge. 

We restate this information in proposed 

§ 5.337. No substantive changes are 

intended. 

Tuberculosis 

5.340 Pulmonary Tuberculosis Shown 

by X-ray in Active Service 

We propose to repeat the language of 

current § 3.370 in proposed § 5.340 

without change. 

5.341 Presumptive Service Connection 

for Tuberculous Disease; Wartime and 

Service After December 31, 1946 

We propose to repeat the language of 

current § 3.371 in proposed § 5.341, 

with only the following technical 

changes. First, the proposed rule 

references the proposed part 5 

counterpart to current § 3.307, § 5.261, 

which was published as proposed on 

July 27, 2004. See 69 FR 44614, 44624– 

25. Second, where current § 3.371(c) 

refers to the time period ‘‘within 36 

months after the veteran’s separation 

from service as determined under 

§ 3.307(a)(2),’’ in proposed § 5.341(c) we 

refer to the time period as ‘‘within the 

3-year presumptive period provided by 

§ 5.261(d).’’ The proposed language 

matches the language in proposed 

§ 5.341(a)(1) and will make the 

proposed regulation internally 

consistent in the reference to the 3-year 

presumptive period for tuberculosis. 

5.342 Initial Grant Following Inactivity 

of Tuberculosis 

We propose to repeat the language of 

current § 3.372 in proposed § 5.342 

without change. 

5.343 Effect of Diagnosis of Active 

Tuberculosis 

Proposed § 5.343 repeats the language 

of current § 3.374, except for one 

technical change and one clarification. 

The proposed rule replaces the title 

‘‘Chief Medical Director’’ with ‘‘Under 

Secretary for Health,’’ VA’s current title 

for the identical position. Section 

3.374(b) states, ‘‘Reference to the Clinic 

Director or Chief, Outpatient Service, 

will be in order in questionable cases 

and, if necessary, to the [Under 

Secretary for Health] in Central Office.’’ 

Proposed § 5.343(b) would state, ‘‘In a 

case where there is no such diagnosis, 

but there is evidence that the veteran 

has tuberculosis, the case will be 

referred to [the VA officers specified in 

the regulation].’’ This makes clear that 

the referral is mandatory in the 

circumstance described, and it 

eliminates potential uncertainty about 

what could make a case ‘‘questionable.’’ 

No substantive changes are intended. 

5.344 Determination of Inactivity 

(Complete Arrest) of Tuberculosis 

We propose to repeat the language of 

current § 3.375 in proposed § 5.344 

without change. 

5.345 Changes From Activity in 

Pulmonary Tuberculosis Pension Cases 

We propose to repeat the language of 

current § 3.378 in proposed § 5.345, 

with only minor, technical revisions. 

5.346 Tuberculosis and Compensation 

Under 38 U.S.C. 1114(q) and 1156 

Proposed § 5.346(a) repeats the 

language of current § 3.959. The 

proposed section’s title makes clear that 

it only applies to compensation under 

38 U.S.C. 1114(q) and 1156. This is not 

done in the current regulation. No 

substantive changes are intended. 

Proposed § 5.346(b)(1)(i) is based on 

current § 3.350(g)(1), which provides for 

SMC for arrested tuberculosis. The 

statutory authority for this 

compensation was 38 U.S.C. 1114(q), 

which was repealed by section 4(a) of 

Public Law 90–493, 82 Stat. 409 (Aug. 

19, 1968). However, under section 4(b) 

of Public Law 90–493, a veteran who 

was receiving or entitled to receive 

compensation for tuberculosis on 

August 19, 1968, is entitled to a 

minimum monthly rate of compensation 

of $67. Id. This provision will be placed 

in part 5 because there are some current 

veterans who continue to receive this 

benefit. Although the part 3 equivalent 

of this paragraph is contained in current 

§ 3.350 with the other SMC provisions 

authorized by 38 U.S.C. 1114, we 

propose to place this provision with 

other regulations pertaining to 

tuberculosis so that it will be easier to 

locate. 

We propose to repeat the language of 

current § 3.401(g) in proposed 

§ 5.346(b)(1)(ii) without change. Current 

§ 3.401(g) provides the effective date for 

the minimum monthly rate of 

compensation of $67. Placing this 

effective date provision in the same 

regulation as basis for the specific 

benefit to which it applies is consistent 

with our proposal to organize by benefit 

and topic the part 5 rewrites of the 

current part 3 regulations. 

Proposed § 5.346(b)(2) is based on 

current § 3.350(g)(2). No substantive 

changes are intended. 

5.347 Continuance of a Total 

Disability Rating for Service-Connected 

Tuberculosis 

We propose, in § 5.347, to repeat the 

language of current § 3.343(b) without 

substantive change. We have updated 

the term, ‘‘rating board’’ to ‘‘agency of 

original jurisdiction,’’ VA’s current term 

for the VA activity that is responsible 

for making the initial determination on 

an issue affecting a claimant’s or 

beneficiary’s right to benefits. 

The citation to current § 3.321(b) will 

be updated to the part 5 equivalent 

when we publish the final version of 

this rule. 

Injury or Death Due to Hospitalization 

or Treatment 

5.350 Benefits Under 38 U.S.C. 1151(a) 

for Additional Disability or Death Due 

to Hospital Care, Medical or Surgical 

Treatment, Examination, Training and 

Rehabilitation Services, or Compensated 

Work Therapy Program 

We propose to repeat the language of 

current § 3.361 in proposed § 5.350 with 

one substantive change. We have not 

repeated current § 3.361(g)(1), ‘‘Death 

before January 1, 1957.’’ The paragraph 

provides that death compensation is the 

benefit payable under 38 U.S.C. 1151 for 

such deaths. 

There are fewer than 300 beneficiaries 

currently receiving death compensation. 

Except for one small group of 

beneficiaries, death compensation is 

payable only if the veteran died prior to 

January 1, 1957. VA has not received a 

claim for death compensation in over 10 

years and we do not expect to receive 

any more claims. We conclude that 

because of the small number of 

beneficiaries of death compensation, the 

provisions concerning death 

compensation do not need to be carried 

forward to part 5. 

We have updated the citation to 

§ 3.114(a), contained in current 

§ 3.361(a)(2), to the proposed part 5 

counterpart, § 5.152(a), which was 

published as proposed on May 22, 2007. 

See 72 FR 28770, 28789. 

Current § 3.361 applies to claims 

under 38 U.S.C. 1151(a) received by VA 

after September 30, 1997. Current 

§ 3.358 is a similar regulation that 

applies to claims under 38 U.S.C. 

1151(a) received by VA before October 

1, 1997. Because Part 5 will apply only 

to future claims, we will not repeat the 

provisions of current § 3.358 in Part 5. 


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5.351 Effective Dates for Awards of 

Benefits Under 38 U.S.C. 1151(a) 

Proposed § 5.351 is derived from 

current § 3.400(i)(1). The effective-date 

rule is restated without substantive 

change. 

5.352 Effect on Benefits Awarded 

Under 38 U.S.C. 1151(a) of Federal Tort 

Claims Act Compromises, Settlements, 

and Judgments Entered After November 

30, 1962 

Proposed § 5.352 restates current 

§ 3.362 with only minor technical 

revisions. Current § 3.362 applies to 

claims under 38 U.S.C. 1151(a) received 

by VA after September 30, 1997. Current 

§ 3.800 is a similar regulation that 

applies to claims under 38 U.S.C. 

1151(a) received by VA before October 

1, 1997. Because part 5 will apply only 

to future claims, we will not repeat the 

provisions of current § 3.800 in part 5. 

5.353 Effect on Benefits Awarded 

Under 38 U.S.C. 1151(a) of Federal Tort 

Claims Act Administrative Awards, 

Compromises, Settlements, and 

Judgments Finalized Before December 1, 

1962 

Proposed § 5.353 restates current 

§ 3.363 with only minor technical 

revisions. Current § 3.363 applies to 

claims under 38 U.S.C. 1151(a) received 

by VA after September 30, 1997. Current 

§ 3.800 is a similar regulation that 

applies to claims under 38 U.S.C. 

1151(a) received by VA before October 

1, 1997. Because Part 5 will apply only 

to future claims, we will not repeat the 

provisions of current § 3.800 in Part 5. 

Ratings for Healthcare Eligibility Only 

5.360 Service Connection of Dental 

Conditions for Treatment Purposes 

Proposed § 5.360 is derived from 

current § 3.381. Proposed paragraph (a) 

is a cross reference which states that, 

‘‘Eligibility requirements for dental 

treatment are set forth in § 17.161 of this 

chapter.’’ 

Proposed paragraph (b) is derived 

from current § 3.381(a). It lists the 

dental conditions that may be 

considered service connected solely for 

establishing eligibility for outpatient 

dental treatment. We have added a 

statement of VA’s long-standing policy 

that monetary compensation cannot be 

paid for these dental conditions in order 

to clarify for the public the nature of the 

VA benefits that veterans are entitled to 

receive. 

In addition, the current regulation 

under § 3.381(a) lists periodontal 

disease as one of the four dental 

conditions that can be considered for 

service connection, but it does not 

indicate whether the periodontal 

disease must be acute or chronic in 

nature. We propose to clarify the 

requirement that periodontal disease 

must be chronic in nature before service 

connection can be considered because 

the current VA regulation, in 

§ 3.381(e)(2), prohibits the 

establishment of service connection for 

acute periodontal disease. This 

clarification is thus consistent with 

current practice, and including it in this 

rule will help the readers of this 

provision. 

Current § 3.381(e) says that the 

conditions listed therein will not be 

service connected for dental treatment 

purposes. Section 5.360(c) would insert 

the word ‘‘outpatient’’, thus: ‘‘* * * for 

outpatient dental treatment purposes:’’. 

We note the title of § 3.381 does not 

include ‘‘outpatient,’’ but § 3.381(a) is 

about conditions that qualify for 

‘‘outpatient dental treatment as 

provided in § 17.161 of this chapter.’’ 

Section 3.381 as a whole distinguishes 

conditions that do from conditions that 

do not qualify for treatment as § 17.161 

provides. The addition of ‘‘outpatient’’ 

to proposed paragraph (c) is to 

harmonize the section internally and to 

harmonize the section with § 17.161. It 

makes no substantive change. 

5.361 Healthcare Eligibility of Persons 

Administratively Discharged Under 

Other-Than-Honorable Conditions 

Proposed § 5.361 restates, with minor 

technical and organizational revisions, 

current § 3.360. No substantive changes 

are intended. 

5.362 Presumption of Service 

Incurrence of Active Psychosis for 

Purposes of Entitlement to Hospital, 

Nursing Home, Domiciliary, and 

Medical Care 

Chapter 17 of title 38 U.S.C. pertains 

to hospital, nursing home, and 

domiciliary and medical care for 

veterans. Section 1702 of this title 

states: 

For the purposes of [chapter 17], any 

veteran of World War II, the Korean conflict, 

the Vietnam era, or the Persian Gulf War who 

developed an active psychosis (1) within two 

years after discharge or release from the 

active military, naval, or air service, and (2) 

before July 26, 1949, in the case of a veteran 

of World War II, before February 1, 1957, in 

the case of a veteran of the Korean conflict, 

before May 8, 1977, in the case of a Vietnam 

era veteran, or before the end of the two year 

period beginning on the last day of the 

Persian Gulf War, in the case of a veteran of 

the Persian Gulf War, shall be deemed to 

have incurred such disability in active 

military, naval, or air service. 

We propose a new regulation that 

implements this statutory provision. 

Although the statutory provision was 

enacted originally in 1958, it has never 

been codified by regulation. Codifying 

this provision will help ensure that 

veterans, their representatives, and VA 

employees are aware of this potentially 

important benefit. 

Proposed § 5.362(a) sets forth the 

basic rule that VA will presume service 

connected an active psychosis that 

develops in a veteran identified in 

§ 5.362(b). Proposed § 5.362(b) sets forth 

the statutorily required wartime service 

and provides the exact periods during 

which the active psychosis must have 

developed or, in the case of the ongoing 

Persian Gulf War, provides that such 

psychosis must have developed within 

two years after the end of that war. 

To aid the reader, we propose to cross 

reference § 5.20, published as proposed 

on January 30, 2004, which specifies the 

periods of war. See 69 FR 4820, 4832. 

5.363 Determination of Service 

Connection for Former Members of the 

Armed Forces of Czechoslovakia or 

Poland 

We propose no substantive change to 

the language of current § 3.359. We have 

updated the term, ‘‘rating board’’ to 

‘‘agency of original jurisdiction,’’ VA’s 

current term for the VA activity that is 

responsible for making the initial 

determination on an issue affecting a 

claimant’s or beneficiary’s right to 

benefits. 

Miscellaneous Service-Connection 

Regulations 

5.365 Claims Based on the Effects of 

Tobacco Products 

We propose to repeat the language of 

current § 3.300 in § 5.365 without 

substantive change. We are not 

repeating the first clause of § 3.300, ‘‘For 

claims received by VA after June 9, 

1998,’’ because all claims under part 5 

will be received after 1998. For 

references to other part 3 provisions 

contained within current § 3.300, we 

have updated the references to the part 

5 counterparts that have already been 

addressed in a prior NPRM. Sections 

5.260, 5.261, 5.262, 5.263, 5.264, 2.265, 

5.267, and 5.268 were published as 

proposed on July 27, 2004. See 69 FR 

44614. We have retained the cite to the 

current part 3 regulation where the 

proposed part 5 regulation that deals 

with the same subject matter has not yet 

been published. 

5.366 Disability Due to Impaired 

Hearing 

Proposed § 5.366 is a restatement of 

current § 3.385. No substantive changes 

are intended. 


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5.367 Civil Service Preference Ratings 

We propose to repeat the content of 

current § 3.357 in proposed § 5.367 

without change. 

5.368 Basic Eligibility Determinations: 

Home Loan and Education Benefits 

We propose to repeat the language of 

current § 3.315(b) and (c) in proposed 

§ 5.368 without substantive change. 

Note that this proposed regulation does 

not contain an equivalent provision to 

current § 3.315(a); however, current 

§ 3.57(a)(1)(ii) states the same rule 

regarding the definition of child—that a 

person 18 years of age or older may be 

recognized as a ‘‘child’’ for the purpose 

of compensation and pension benefits, if 

the person, before reaching 18 years of 

age, became permanently incapable of 

self-support by reason of physical or 

mental disability. Proposed 

§ 5.220(b)(2)(i), the proposed part 5 

equivalent of these part 3 provisions, 

was published on September 20, 2006. 

See 71 FR 55052, 55069. 

In proposed § 5.368, we have changed 

the citation to § 3.12a to its counterpart 

in part 5, § 5.39, published as proposed 

on January 30, 2004. See 69 FR 4820, 

4841–42. 

Endnote Regarding Amendatory 

Language 

We intend to ultimately remove part 

3 entirely, but we are not including 

amendatory language to accomplish that 

at this time. VA will provide public 

notice before removing part 3. 

Paperwork Reduction Act of 1995 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed regulatory amendment 

will not have a significant economic 

impact on a substantial number of small 

entities as they are defined in the 

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

612. This proposed amendment would 

not affect any small entities. Therefore, 

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

proposed amendment is exempt from 

the initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(OMB) unless OMB waives such review, 

as any regulatory action that is likely to 

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

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this proposed rule have 

been examined, and it has been 

determined to be a significant regulatory 

action under the Executive Order 

because it is likely to result in a rule that 

may raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

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

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in an 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

(adjusted annually for inflation) in any 

1 year. This proposed rule would have 

no such effect on State, local, and tribal 

governments, or the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this proposal are 64.100, 

Automobiles and Adaptive Equipment 

for Certain Disabled Veterans and 

Members of the Armed Forces; 64.101, 

Burial Expenses Allowance for 

Veterans; 64.102, Compensation for 

Service-Connected Deaths for Veterans’ 

Dependents; 64.104, Pension for NonService Connected Disability for 

Veterans; 64.105, Pension to Veterans 

Surviving Spouses, and Children; 

64.106, Specially Adapted Housing for 

Disabled Veterans; 64.109, Veterans 

Compensation for Service-Connected 

Disability; 64.110, Veterans Dependency 

and Indemnity Compensation for 

Service-Connected Death; 64.115, 

Veterans Information and Assistance; 

and 64.127, Monthly Allowance for 

Children of Vietnam Veterans Born with 

Spina Bifida. 

List of Subjects in 38 CFR Part 5 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Approved: July 10, 2008. 

Gordon H. Mansfield, 

Deputy Secretary of Veterans Affairs. 

For the reasons set out in the 

preamble, VA proposes to further 

amend 38 CFR part 5 as proposed to be 

added at 69 FR 4832, January 30, 2004, 

and as further proposed to be amended 

at 69 FR 44614, July 27, 2004, as 

follows: 

PART 5—COMPENSATION, PENSION, 

BURIAL, AND RELATED BENEFITS 

Subpart E—Claims for Service 

Connection and Disability 

Compensation 

1. The authority citation for subpart E 

continues to read as follows: 

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

specific sections. 

2. Sections 5.320 through 5.369 and 

their undesignated center headings are 

added to subpart E to read as follows: 

Special Monthly Compensation 

Sec. 

5.320 Determining need for regular aid and 

attendance. 

5.321 Additional compensation for veteran 

whose spouse needs regular aid and 

attendance. 

5.322 Special monthly compensation— 

general information and definitions of 

disabilities. 

5.323 Special monthly compensation under 

38 U.S.C. 1114(k). 

5.324 Special monthly compensation under 

38 U.S.C. 1114(l). 

5.325 Special monthly compensation at the 

intermediate rate between 38 U.S.C. 

1114(l) and (m). 

5.326 Special monthly compensation under 

38 U.S.C. 1114(m). 

5.327 Special monthly compensation at the 

intermediate rate between 38 U.S.C. 

1114(m) and (n). 

5.328 Special monthly compensation under 

38 U.S.C. 1114(n). 

5.329 Special monthly compensation at the 

intermediate rate between 38 U.S.C. 

1114(n) and (o). 

5.330 Special monthly compensation under 

38 U.S.C. 1114(o). 

5.331 Special monthly compensation under 

38 U.S.C. 1114(p). 


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5.332 Additional allowance for regular aid 

and attendance under 38 U.S.C. 

1114(r)(1) or for a higher level of care 

under 38 U.S.C. 1114(r)(2). 

5.333 Special monthly compensation under 

38 U.S.C. 1114(s). 

5.334 Special monthly compensation tables. 

5.335 Effective dates—Special monthly 

compensation under §§ 5.332 and 5.333. 

5.336 Effective dates—additional 

compensation for regular aid and 

attendance payable for a veteran’s spouse 

under § 5.321. 

5.337 Award of special monthly 

compensation based on the need for 

regular aid and attendance during period 

of hospitalization. 

5.338–5.339 [Reserved] 

Tuberculosis 

5.340 Pulmonary tuberculosis shown by Xray in active service. 

5.341 Presumptive service connection for 

tuberculous disease; wartime and service 

after December 31, 1946. 

5.342 Initial grant following inactivity of 

tuberculosis. 

5.343 Effect of diagnosis of active 

tuberculosis. 

5.344 Determination of inactivity (complete 

arrest) of tuberculosis. 

5.345 Changes from activity in pulmonary 

tuberculosis pension cases. 

5.346 Tuberculosis and compensation 

under 38 U.S.C. 1114(q) and 1156. 

5.347 Continuance of a total disability 

rating for service-connected tuberculosis. 

5.348–5.349 [Reserved] 

Injury or Death Due to Hospitalization or 

Treatment 

5.350 Benefits under 38 U.S.C. 1151(a) for 

additional disability or death due to 

hospital care, medical or surgical 

treatment, examination, training and 

rehabilitation services, or compensated 

work therapy program. 

5.351 Effective dates for awards of benefits 

under 38 U.S.C. 1151(a). 

5.352 Effect on benefits awarded under 38 

U.S.C. 1151(a) of Federal Tort Claims Act 

compromises, settlements, and 

judgments entered after November 30, 

1962. 

5.353 Effect on benefits awarded under 38 

U.S.C. 1151(a) of Federal Tort Claims Act 

administrative awards, compromises, 

settlements, and judgments finalized 

before December 1, 1962. 

5.354–5.359 [Reserved] 

Ratings for Healthcare Eligibility Only 

5.360 Service connection of dental 

conditions for treatment purposes. 

5.361 Healthcare eligibility of persons 

administratively discharged under otherthan-honorable conditions. 

5.362 Presumption of service incurrence of 

active psychosis for purposes of hospital, 

nursing home, domiciliary, and medical 

care. 

5.363 Determination of service connection 

for former members of the Armed Forces 

of Czechoslovakia or Poland. 

5.364 [Reserved] 

Miscellaneous Service-Connection 

Regulations 

5.365 Claims based on the effects of tobacco 

products. 

5.366 Disability due to impaired hearing. 

5.367 Civil service preference ratings. 

5.368 Basic eligibility determinations: home 

loan and education benefits. 

5.369 [Reserved] 

Subpart E—Claims for Service Connection 

and Disability Compensation 

Special Monthly Compensation 

§ 5.320 Determining need for regular aid 

and attendance. 

For the purposes of this part, an 

individual needs regular aid and 

attendance if either of the following is 

true: 

(a) The individual, based on his or her 

condition as a whole, has a temporary 

or permanent need for assistance, as 

shown by the extent of his or her 

impaired ability to perform any or all of 

the following functions: 

(1) Getting dressed or undressed. 

(2) Keeping clean and presentable. 

(3) Making frequent and necessary 

adjustments to a prosthetic or 

orthopedic appliance. (This does not 

include the adjustment of appliances 

that able persons also cannot adjust 

without assistance, such as lacing at the 

back, supports, and belts.) 

(4) Eating or drinking, as a result of 

the loss of coordination of the upper 

extremities or extreme weakness. 

(5) Attending to bowel and bladder 

needs. 

(6) Protecting himself or herself from 

the hazards or dangers of his or her 

daily environment. 

(Authority: 38 U.S.C. 1114(l), (m), (r)). 

(b) The individual is temporarily or 

permanently bedridden (i.e., must 

remain in bed due to his or her 

disability or disabilities based on 

medical necessity and not based on a 

prescription of bed rest for purposes of 

convalescence or cure). 

(Authority: 38 U.S.C. 1114(l)) 

§ 5.321 Additional compensation for 

veteran whose spouse needs regular aid 

and attendance. 

(a) General entitlement. A veteran 

who has a service-connected disability 

rating of at least 30 percent is entitled 

to special monthly compensation (SMC) 

if his or her spouse needs regular aid 

and attendance. 

(b) Automatic eligibility. The spouse 

will be considered to be in need of 

regular aid and attendance if any of the 

following apply: 

(1) The spouse has corrected visual 

acuity of 5/200 or less in both eyes; 

(2) The spouse has concentric 

contraction of the visual field to 5 

degrees or less in both eyes; or 

(3) The spouse is a patient in a 

nursing home because of mental or 

physical incapacity. 

(c) Factual need. If the spouse does 

not meet the criteria under paragraph 

(b), the spouse will be considered in 

need of regular aid and attendance if 

need is demonstrated under § 5.320. 

(Authority: 38 U.S.C. 1115) 

§ 5.322 Special monthly compensation— 

general information and definitions of 

disabilities. 

(a) General. (1) Multiple regulations 

(§§ 5.321, 5.323–5.333) allow special 

monthly compensation (SMC) to 

veterans who have certain serviceconnected disabilities. The monetary 

rates of payment of SMC are found in 

38 U.S.C. 1114 and 1115(1)(E). They are 

also on the Internet at http:// 

www.va.gov and are available from any 

VA Regional Office. Under 38 U.S.C. 

1114 and 1115(1)(E), a veteran is 

entitled to SMC if he or she is in receipt 

of service-connected disability 

compensation and: 

(i) Is in need of regular aid and 

attendance (see § 5.320); 

(ii) Is permanently bedridden; 

(iii) Has certain disabilities or 

combinations of disabilities; or 

(iv) Has a spouse who is in need of 

regular aid and attendance. 

(2) Certain nonservice-connected 

disabilities will be considered in 

determining entitlement to SMC. (See 

§§ 5.323(c)(5)) (contribution of 

nonservice-connected loss of use of 

creative organ to service-connected loss 

of use of creative organ); 5.330(b), (c) 

(bilateral deafness of specified severity); 

5.331(b) (bilateral blindness as specified 

with bilateral deafness as specified). 

(3) This section defines disabilities 

that establish entitlement to SMC and 

that are not defined in other regulations. 

(b) Loss of use of a hand means the 

hand functions no better than a 

prosthesis would function if attached to 

the arm at a point of amputation below 

the elbow. In making this 

determination, VA will consider the 

actual remaining function of the hand, 

including, but not limited to, whether 

the hand can perform acts such as 

grasping or manipulation with the same 

proficiency as an amputation stump 

with prosthesis. Complete ankylosis of 

two major joints of an upper extremity 

is an example of a situation that will 

constitute loss of use of the hand. The 

major joints of the upper extremity are 

the shoulder, elbow, and wrist. 

(c) Loss of use of a foot means the foot 

functions no better than a prosthesis 


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would function if attached to the leg at 

a point of amputation below the knee. 

In making this determination, VA will 

consider the actual remaining function 

of the foot, including, but not limited to, 

whether the foot can perform acts such 

as balance or propulsion with the same 

proficiency as an amputation stump 

with prosthesis. Examples of situations 

that will constitute loss of use of a foot 

include: 

(1) Extremely unfavorable complete 

ankylosis of the knee, that is, the knee 

fixed in flexion at an angle of 45 degrees 

or more; 

(2) Complete ankylosis of two major 

joints of the lower extremity, that is, of 

the hip, knee, or ankle; 

(3) Shortening of the lower extremity 

of 3.5 inches or more; and 

(4) Complete paralysis of the external 

popliteal nerve (common peroneal) and 

resulting foot drop, accompanied by 

characteristic organic changes including 

trophic and circulatory disturbances 

and other concomitants that confirm 

complete paralysis of the nerve. 

(d) Natural elbow or knee action 

prevented when a prosthesis is in place 

means that the veteran is unable to use 

a prosthesis that requires the natural use 

of the elbow or knee joint. If there is no 

movement of the joint (as in complete 

ankylosis or complete paralysis) and a 

prosthesis is not used, VA will 

determine entitlement to SMC based on 

prevented natural elbow or knee action 

as if a prosthesis were in place. 

(e) Use of prosthesis prevented means 

that the veteran’s disability prevents the 

use of prosthesis. This can establish the 

veteran’s entitlement to SMC in two 

circumstances: 

(1) Anatomical loss near the shoulder. 

A veteran meets the requirements for 

SMC based on anatomical loss of the 

upper extremity (arm) near the shoulder 

if the anatomical loss prevents the use 

of a prosthesis, and reamputation at a 

higher level that permits the use of a 

prosthesis is not possible. However, if 

the veteran cannot wear a prosthesis at 

the present level of amputation of the 

arm but could wear a prosthesis if there 

were a reamputation at a higher level, 

VA will consider the veteran eligible 

only for SMC based on anatomical loss 

or loss of use of the arm at a level, or 

with complications, preventing natural 

elbow action with a prosthesis in place 

(see paragraph (d) of this section). 

(2) Anatomical loss near the hip. A 

veteran meets the requirements for SMC 

based on anatomical loss of the lower 

extremity (leg) near the hip if the 

anatomical loss prevents the use of a 

prosthesis, and reamputation at a higher 

level that permits the use of a prosthesis 

is not possible. However, if the veteran 

cannot wear a prosthesis at the present 

level of amputation of the leg but could 

wear a prosthesis if there were a 

reamputation at a higher level, VA will 

consider the veteran eligible only for 

SMC based on anatomical loss or loss of 

use of the leg at a level, or with 

complications, preventing natural knee 

action with a prosthesis in place (see 

paragraph (d) of this section). 

(f) Visual acuity of 5/200 or less. If the 

veteran has actual visual acuity better 

than 5/200 but is nevertheless assigned 

a disability rating under part 4 of this 

chapter based on visual acuity of 5/200, 

the veteran is not considered to have 

visual acuity of 5/200 or less for 

purposes of eligibility for SMC. See 

§ 4.83 of this chapter. 

(g) Loss of use or blindness of one eye, 

having only light perception. Loss of use 

or blindness of one eye, having only 

light perception, means that the veteran 

is unable to recognize test letters at 1 

foot and cannot perceive objects or hand 

movements, or count fingers, at a 

distance of 3 feet. A veteran is eligible 

for SMC under this paragraph if he or 

she meets the criteria in the preceding 

sentence, even if the veteran can 

perceive objects or hand movements, or 

can count fingers, at distances of less 

than 3 feet. See § 4.79 of this chapter. 

(Authority: 38 U.S.C. 501(a), 1114) 

§ 5.323 Special monthly compensation 

under 38 U.S.C. 1114(k). 

(a) Basic entitlement. Special monthly 

compensation (SMC) under 38 U.S.C. 

1114(k) is payable to a veteran who has 

the following service-connected 

disabilities: 

(1) Anatomical loss or loss of use of 

one hand. 

(2) Anatomical loss or loss of use of 

one foot. 

(3) Anatomical loss or loss of use of 

both buttocks. 

(4) Anatomical loss or loss of use of 

one or more creative organs. 

(5) Blindness of one eye having only 

light perception. 

(6) Deafness of both ears having 

absence of air and bone conduction. 

(7) Complete organic aphonia with 

constant inability to communicate by 

speech. 

(8) In the case of a female veteran, 

either of the following: 

(i) Anatomical loss of 25 percent or 

more of tissue from a single breast or 

both breasts in combination (including, 

but not limited to, loss by mastectomy 

or partial mastectomy); or 

(ii) Treatment of breast tissue with 

radiation (‘‘treatment’’ includes 

therapeutic procedures but not 

diagnostic procedures). 

Note to paragraph (a): For the criteria 

for determining anatomical loss or loss 

of use of a hand or of a foot, see 

§ 5.322(b) and (c) respectively. For the 

criteria for determining loss of use or 

blindness of one eye, having only light 

perception, see § 5.322(g). 

(b) Limitations. 

(1) Combining with 38 U.S.C. 1114(a) 

through (j), or (s). SMC under 38 U.S.C. 

1114(k) is payable in addition to the 

compensation authorized by 38 U.S.C. 

1114(a) through (j), or (s), subject to the 

following limitations: 

(i) The combined rate of 

compensation must not exceed the 

monthly rate provided by 38 U.S.C. 

1114(l) when authorized in conjunction 

with any of the rates provided by 38 

U.S.C. 1114(a) through (j), or (s). 

(ii) If the veteran has entitlement 

under 38 U.S.C. 1114(l) through (n), or 

(p), SMC under 38 U.S.C. 1114(k) is 

payable for each anatomical loss or loss 

of use in addition to the losses used to 

establish entitlement under 38 U.S.C. 

1114(l) through (n), or (p), as long as the 

combined monthly compensation does 

not exceed the monthly rate provided by 

38 U.S.C. 1114(o). 

(iii) The additional compensation for 

dependents under 38 U.S.C. 1115 and 

the additional allowance for regular aid 

and attendance or a higher level of care 

provided by 38 U.S.C. 1114(r) are not 

subject to the above limitations 

regarding maximum monthly 

compensation payable under this 

paragraph. 

(2) Combining with 38 U.S.C. 1114(l) 

through (n). A disability for which SMC 

is paid under 38 U.S.C. 1114(k) may not 

be a basis for a higher level of SMC 

under 38 U.S.C. 1114(l) through (n); 

however, a disability for which SMC is 

paid under 38 U.S.C. 1114(k) may be 

paid concurrently with SMC under 38 

U.S.C. 1114(l) through (n), as long as the 

same disability is not the basis for SMC 

under both 38 U.S.C. 1114(k) and either 

38 U.S.C. 1114(l), (m), or (n). The total 

combined rate of SMC cannot exceed 

the amount set forth in 38 U.S.C. 

1114(o). 

(c) Creative organ. (1) A creative organ 

means an organ directly involved in 

reproduction. 

(2) Anatomical loss of a creative organ 

exists in any of the following 

circumstances: 

(i) Acquired absence of one or both 

testicles (other than undescended 

testicles); 

(ii) Acquired absence of one or both 

ovaries; or 

(iii) Acquired absence of other 

creative organs. 


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(3) Loss of use of a creative organ 

exists in any of the following 

circumstances: 

(i) The diameters of the affected 

testicle are reduced to one-third of the 

corresponding diameters of the normal 

testicle; 

(ii) The diameters of the affected 

testicle are reduced to one-half or less 

of the corresponding normal testicle 

with changes in consistency of the 

affected testicle (harder or softer) when 

compared to the normal testicle; 

(iii) Absence of spermatozoa proven 

by biopsy performed with the informed 

consent of the veteran; or 

(iv) Medical evidence shows that, due 

to injury or disease, reproduction is not 

possible without medical intervention. 

This could occur if the veteran has: 

(A) In the case of paired creative 

organs, the loss of function of at least 

one such organ; or 

(B) In the case of an unpaired creative 

organ, loss of function. 

(4) SMC under 38 U.S.C. 1114(k) is 

payable for service-connected erectile 

dysfunction as the loss of use of a 

creative organ even if the veteran uses 

prescription medications or mechanical 

devices to treat the erectile dysfunction. 

This rule applies regardless of whether 

such treatment is effective. 

(5) SMC under 38 U.S.C. 1114(k) is 

payable for a service-connected 

anatomical loss of a creative organ even 

if it is preceded by a nonserviceconnected loss of use. Examples of this 

include, but are not limited to, the 

following: 

(i) The veteran had a vasectomy 

before military service with the 

anatomical loss or loss of use of one 

testicle during military service; 

(ii) The veteran had a vasectomy 

following military service with a 

subsequent prostatectomy as a result of 

service-connected prostate cancer; 

(iii) The veteran had impotence as a 

result of a nonservice-connected 

psychiatric condition with subsequent 

prostatectomy due to service-connected 

prostate cancer; or 

(iv) The veteran had a tubal ligation 

before service with a subsequent 

oophorectomy due to service-connected 

injury or disease. 

(6) SMC under 38 U.S.C. 1114(k) is 

not payable when anatomical loss or 

loss of use of a creative organ resulted 

from elective surgery performed after 

military service. However, if the elective 

surgery after service was necessary to 

correct an injury caused by surgery 

during military service, SMC under 38 

U.S.C. 1114(k) is payable. Surgery 

advised on sound medical judgment for 

relief of a pathological condition or to 

prevent possible future pathological 

consequences is not considered to be 

elective surgery. 

(7) Atrophy resulting from mumps 

followed by orchitis in service is 

presumed service connected. Because 

atrophy is usually perceptible within 1 

to 6 months after infection subsides, an 

examination more than 6 months after 

the remission of orchitis demonstrating 

a normal genitourinary system will be 

considered in determining if the 

presumption is rebutted. 

(d) Determining loss of use of both 

buttocks. (1) Loss of use of both buttocks 

exists if there is severe damage by 

disease or injury to muscle group XVII, 

bilaterally (See §§ 4.56, 4.73, Diagnostic 

Code 5317, of this chapter), and 

additional disability making it 

impossible for the individual, without 

assistance, to rise from a seated position 

and from a stooped position (fingers to 

toes position) and to maintain postural 

stability (pelvis upon head of femur). 

The cited assistance may be provided by 

the individual’s own hands or arms, 

and, in the matter of postural stability, 

by a special appliance. 

(2) The receipt of SMC for anatomical 

loss or loss of use of both lower 

extremities under 38 U.S.C. 1114(l) 

through (n) does not prevent the receipt 

of SMC under 38 U.S.C. 1114(k) for loss 

of use of both buttocks if appropriate 

tests clearly substantiate there is such 

additional loss of use. 

(e) Deafness. Deafness of both ears, 

having absence of air and bone 

conduction, exists if an authorized VA 

audiology examination shows bilateral 

hearing loss equal to or greater than the 

bilateral hearing loss required for a 

maximum rating under the Schedule for 

Rating Disabilities in part 4 of this 

chapter. 

(f) Aphonia. Complete organic 

aphonia exists if an individual has a 

disability of the speech organs that 

constantly precludes communication by 

speech. 

(Authority: 38 U.S.C. 1114(k)) 

§ 5.324 Special monthly compensation 

under 38 U.S.C. 1114(l). 

Special monthly compensation (SMC) 

under 38 U.S.C. 1114(l) is payable to a 

veteran who has any of the following 

service-connected disabilities: 

(a) Anatomical loss or loss of use of 

both feet. See § 5.322(c). 

(b) Anatomical loss or loss of use of 

one hand and one foot. See § 5.322(b), 

(c). 

(c) Each eye having either: 

(1) Blindness with visual acuity of 5/ 

200 or less under § 5.322(f); or 

(2) Concentric contraction of the 

visual field to 5 degrees or less. 

(d) Service-connected disability (or 

disabilities) causing the veteran to be 

permanently bedridden, which means 

that the veteran must remain in bed, and 

it is reasonably certain that the 

confinement to bed will continue 

throughout his or her lifetime. The 

criteria for determining whether a 

veteran is bedridden are found at 

§ 5.320(b). 

(e) Service-connected disability or 

disabilities establishing the veteran’s 

need for regular aid and attendance 

under § 5.320. Note: Unless the veteran 

is entitled to additional SMC under 38 

U.S.C. 1114(r) (see § 5.332), VA will 

award SMC under 38 U.S.C. 1114(l) 

based on permanently bedridden status 

if the veteran is permanently bedridden 

(see paragraph (d) of this section) rather 

than on the need for regular aid and 

attendance. 

(Authority: 38 U.S.C. 1114(l)) 

Cross Reference: § 5.330, ‘‘Special monthly 

compensation under 38 U.S.C. 1114(o)’’ 

(discussing combinations of awards made 

under §§ 5.324, 5.326, or 5.328). 

§ 5.325 Special monthly compensation at 

the intermediate rate between 38 U.S.C. 

1114(l) and (m). 

VA will pay special monthly 

compensation (SMC) at the intermediate 

rate between 38 U.S.C. 1114(l) and (m) 

for any of the combinations of 

disabilities listed in paragraphs (a) 

through (d) of this section. (The 

intermediate rate is the arithmetic mean 

between the rates for (l) and (m), 

rounded down to the next lower dollar.) 

(a) Anatomical loss or loss of use of 

one foot with anatomical loss or loss of 

use of the opposite leg at a level, or with 

complications, preventing natural knee 

action with prosthesis in place. 

(b) Anatomical loss or loss of use of 

one arm at a level, or with 

complications, preventing natural elbow 

action with prosthesis in place with 

anatomical loss or loss of use of one 

foot. 

(c) Anatomical loss or loss of use of 

one hand with anatomical loss or loss of 

use of one leg at a level, or with 

complications, preventing natural knee 

action with prosthesis in place. 

(d) Blindness of one eye with visual 

acuity of 5/200 or less, or concentric 

contraction of the visual field to 5 

degrees or less of one eye; and blindness 

of the other eye, having only light 

perception. 

(Authority: 38 U.S.C. 1114(p)) 

Cross Reference: § 5.322, ‘‘Special monthly 

compensation—general information and 

definitions of disabilities’’ (containing the 

criteria for the disabilities listed in § 5.325). 


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§ 5.326 Special monthly compensation 

under 38 U.S.C. 1114(m). 

Special monthly compensation (SMC) 

under 38 U.S.C. 1114(m) is payable for 

any of the following combinations of 

disabilities: 

(a) Anatomical loss or loss of use of 

both hands. 

(b) Anatomical loss or loss of use of 

both legs at a level, or with 

complications, preventing natural knee 

action with prosthesis in place. 

(c) Anatomical loss or loss of use of 

one foot with anatomical loss of the 

other leg so near the hip as to prevent 

the use of prosthetic appliance. 

(d) Anatomical loss or loss of use of 

one arm so near the shoulder as to 

prevent the use of prosthetic appliance 

with anatomical loss or loss of use of 

one foot. 

(e) Anatomical loss or loss of use of 

one arm at a level, or with 

complications, preventing natural elbow 

action with prosthesis in place and 

anatomical loss or loss of use of one leg 

at a level, or with complications, 

preventing natural knee action with 

prosthesis in place. 

(f) Anatomical loss or loss of use of 

one hand with anatomical loss of one 

leg so near the hip as to prevent the use 

of a prosthetic appliance. 

(g) Blindness in both eyes having only 

light perception. 

(h) Blindness of one eye with visual 

acuity of 5/200 or less or with 

concentric contraction of the visual field 

to 5 degrees or less; and 

(1) Anatomical loss of the other eye; 

or 

(2) Blindness without light perception 

of the other eye. 

(i) Blindness in both eyes leaving the 

veteran so significantly disabled as to 

need regular aid and attendance. If the 

veteran has visual acuity of 5/200 or less 

in both eyes or concentric contraction of 

the visual field to 5 degrees or less in 

both eyes, then entitlement to 

compensation at the section 1114(m) 

rate will be determined on the facts in 

the individual case. 

(Authority: 38 U.S.C. 1114(m), (p)) 

Cross References: § 5.320, ‘‘Determining 

need for regular aid and attendance.’’ § 5.322, 

‘‘Special monthly compensation—general 

information and definitions of disabilities’’ 

(containing the criteria for the disabilities 

listed in § 5.326). § 4.76, ‘‘Examination of 

field [of] vision’’ (containing the criteria for 

blindness based on concentric contraction of 

the visual field). § 5.330, ‘‘Special monthly 

compensation under 38 U.S.C. 1114(o)’’ 

(discussing combinations of awards made 

under §§ 5.324, 5.326, or 5.328). 

§ 5.327 Special monthly compensation at 

the intermediate rate between 38 U.S.C. 

1114(m) and (n). 

VA will pay special monthly 

compensation (SMC) at the intermediate 

rate between 38 U.S.C. 1114(m) and (n) 

for any of the combinations of 

disabilities listed in paragraphs (a) 

through (d) of this section. (The 

intermediate rate is the arithmetic mean 

between the rates for 38 U.S.C. 1114(m) 

and (n), rounded down to the nearest 

dollar.) 

(a) Anatomical loss or loss of use of 

one hand with anatomical loss or loss of 

use of the other arm at a level, or with 

complications, preventing natural elbow 

action with prosthesis in place. 

(b) Anatomical loss or loss of use of 

one leg at a level, or with complications, 

preventing natural knee action with 

prosthesis in place with anatomical loss 

of the other leg so near the hip as to 

prevent the use of prosthetic appliance. 

(c) Anatomical loss of one arm so near 

the shoulder as to prevent the use of 

prosthetic appliance with anatomical 

loss or loss of use of one leg at a level, 

or with complications, preventing 

natural knee action with prosthesis in 

place. 

(d) Anatomical loss or loss of use of 

one arm at a level, or with 

complications, preventing natural elbow 

action with prosthesis in place with 

anatomical loss of one leg so near the 

hip as to prevent the use of prosthetic 

appliance. 

(e) Blindness of one eye, having only 

light perception; and 

(1) Anatomical loss of the other eye; 

or 

(2) Blindness without light perception 

of the other eye. 

(Authority: 38 U.S.C. 1114(p)) 

Cross References: § 5.322, ‘‘Special 

monthly compensation—general information 

and definitions of disabilities.’’ § 5.326, 

‘‘Special monthly compensation under 38 

U.S.C. 1114(m).’’ 

§ 5.328 Special monthly compensation 

under 38 U.S.C. 1114(n). 

VA will pay special monthly 

compensation (SMC) under 38 U.S.C. 

1114(n) for any of the combinations of 

disabilities listed in paragraphs (a) 

through (e) of this section. 

(a) Anatomical loss or loss of use of 

both arms at a level, or with 

complications, preventing natural elbow 

action with prosthesis in place. 

(b) Anatomical loss or loss of use of 

one hand with anatomical loss of the 

other arm so near the shoulder as to 

prevent the use of a prosthetic 

appliance. 

(c) Anatomical loss of both legs so 

near the hip as to prevent the use of 

prosthetic appliances. 

(d) Anatomical loss of one arm so near 

the shoulder as to prevent the use of a 

prosthetic appliance and anatomical 

loss of one leg so near the hip as to 

prevent the use of a prosthetic 

appliance. 

(e) Anatomical loss of both eyes, 

blindness without light perception in 

both eyes, or anatomical loss of one eye 

and blindness without light perception 

in the other eye. 

(Authority: 38 U.S.C. 1114(n), (p)) 

Cross References: § 5.322, ‘‘Special 

monthly compensation—general information 

and definitions of disabilities.’’ § 5.326, 

‘‘Special monthly compensation under 38 

U.S.C. 1114(m).’’ § 5.327, ‘‘Special monthly 

compensation at the intermediate rate 

between 38 U.S.C. 1114(m) and (n)’’ 

(containing the criteria for the disabilities 

listed in § 5.328). § 5.330, ‘‘Special monthly 

compensation under 38 U.S.C. 1114(o)’’ 

(discussing combinations of awards made 

under §§ 5.324, 5.326, or 5.328). 

§ 5.329 Special monthly compensation at 

the intermediate rate between 38 U.S.C. 

1114(n) and (o). 

VA will pay special monthly 

compensation (SMC) at the intermediate 

rate between 38 U.S.C. 1114(n) and (o) 

for anatomical loss or loss of use of one 

arm at a level, or with complications, 

preventing natural elbow action with 

prosthesis in place and anatomical loss 

of the other arm so near the shoulder as 

to prevent the use of prosthetic 

appliance. (The intermediate rate is the 

arithmetic mean between the rates for 

(n) and (o), rounded down to the next 

lower dollar.) 

(Authority: 38 U.S.C. 1114(p)) 

Cross References: § 5.322, ‘‘Special 

monthly compensation—general information 

and definitions of disabilities.’’ § 5.328, 

‘‘Special monthly compensation under 38 

U.S.C. 1114(n)’’ (containing the criteria for 

the disabilities listed in § 5.329). 

§ 5.330 Special monthly compensation 

under 38 U.S.C. 1114(o). 

VA will pay special monthly 

compensation (SMC) under 38 U.S.C. 

1114(o) for any of the following 

combinations of disabilities: 

(a) Anatomical loss of both arms so 

near the shoulder as to prevent the use 

of prosthetic appliances. 

(b) Bilateral deafness rated at 60 

percent or more disabling (and the 

hearing impairment in either one or 

both ears is service connected) in 

combination with service-connected 

blindness with bilateral visual acuity of 

20/200 or less. 

(c) Service-connected total deafness in 

one ear or bilateral deafness rated at 40 

percent or more disabling (and the 


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hearing impairment in either one or 

both ears is service connected) in 

combination with service-connected 

blindness of both eyes having only light 

perception or less. 

(d) Loss of use of both lower 

extremities together with loss of anal 

and bladder sphincter control. (VA will 

consider that the requirement of loss of 

anal and bladder sphincter control is 

met even though incontinence has been 

overcome under a strict regimen of 

rehabilitation training and/or other 

auxiliary measures.) 

(e) Disabilities entitling the veteran to 

two or more of the monetary rates 

provided in 38 U.S.C. 1114(l) through 

(n), without considering any disabilities 

twice. 

(1) Separate and distinct disabilities. 

Entitlement under this paragraph (e) 

must be based on separate, distinct 

disabilities. 

(2) Common cause. A common cause 

of disabilities that are otherwise 

separate and distinct will not preclude 

entitlement to SMC under this 

paragraph (e). For example, a veteran 

with service-connected anatomical loss 

or loss of use of both hands and both 

feet resulting from a common cause 

would nevertheless be entitled to SMC. 

(Authority: 38 U.S.C. 1114(o)) 

Cross References: § 5.320, ‘‘Determining 

need for regular aid and attendance.’’ § 5.322, 

‘‘Special monthly compensation—general 

information and definitions of disabilities.’’ 

§ 5.328, ‘‘Special monthly compensation 

under 38 U.S.C. 1114(n).’’ § 5.329; ‘‘Special 

monthly compensation at the intermediate 

rate between 38 U.S.C. 1114(n) and (o).’’ 

§ 5.332, ‘‘Additional allowance for regular 

aid and attendance under 38 U.S.C. 

1114(r)(1) or for a higher level of care under 

38 U.S.C. 1114(r)(2)’’ (containing criteria 

based in part on the disabilities listed in 

§ 5.330). 

§ 5.331 Special monthly compensation 

under 38 U.S.C. 1114(p). 

(a) Intermediate or next higher level of 

special monthly compensation. In the 

event the veteran’s service-connected 

disabilities exceed the requirements for 

any of the rates prescribed under 

§§ 5.324 through 5.329, VA will pay 

special monthly compensation (SMC) 

under 38 U.S.C. 1114(p) as follows. (An 

intermediate rate authorized by this 

section is the arithmetic mean between 

the two rates of SMC, rounded down to 

the next lower dollar.) 

(b) Bilateral blindness in combination 

with deafness. (1) Blindness in both 

eyes rated under §§ 5.324(c), 5.325(d), or 

5.326(h) or (i), with service-connected 

total deafness in one ear, entitles the 

veteran to the next higher intermediate 

rate. If the veteran is already entitled to 

an intermediate rate, the veteran will be 

entitled to the next higher rate under 38 

U.S.C. 1114. However, the rate cannot 

exceed the rate under 38 U.S.C. 1114(o). 

(2) Blindness in both eyes rated under 

§§ 5.326(g), 5.327(e), or 5.328(e) with 

bilateral deafness (and the hearing 

impairment in either one or both ears is 

service connected) rated at 10 percent or 

20 percent disabling entitles the veteran 

to the next higher intermediate rate. If 

the veteran is already entitled to an 

intermediate rate, the veteran will be 

entitled to the next higher rate under 38 

U.S.C. 1114. However, the rate cannot 

exceed the rate under 38 U.S.C. 1114(o). 

(3) Blindness in both eyes, rated 

under §§ 5.324(c), 5.325(d), 5.326(g), (h), 

or (i), 5.327(e), or 5.328(e), with bilateral 

deafness rated at not less than 30 

percent disabling (and the hearing 

impairment in one or both ears is 

service connected) entitles the veteran 

to the next higher rate under 38 U.S.C. 

1114. If the veteran is already entitled 

to an intermediate rate, the veteran will 

be entitled to the next higher 

intermediate rate. However, the rate 

cannot exceed the rate under 38 U.S.C. 

1114(o). 

(c) Bilateral blindness in combination 

with anatomical loss or loss of use of a 

hand or foot. Blindness in both eyes, 

rated under §§ 5.324(c), 5.325(d), 

5.326(g), (h), or (i), 5.327(e), or 5.328(e), 

combined with any of the disabilities 

described below (in paragraphs (c)(1), 

(2), or (3) of this section). 

(1) Service-connected anatomical loss 

or loss of use of one hand entitles the 

veteran to the next higher statutory rate 

under 38 U.S.C. 1114. If the veteran is 

already entitled to an intermediate rate, 

the veteran will be entitled to the next 

higher intermediate rate. However, the 

rate cannot exceed the rate under 38 

U.S.C. 1114(o). 

(2) Service-connected anatomical loss 

or loss of use of one foot which by itself 

or in combination with another 

compensable disability would be ratable 

at 50 percent or more disabling, entitles 

the veteran to the next higher rate under 

38 U.S.C. 1114. If the veteran is already 

entitled to an intermediate rate, the 

veteran will be entitled to the next 

higher intermediate rate. However, the 

rate cannot exceed the rate under 38 

U.S.C. 1114(o). 

(3) Service-connected anatomical loss 

or loss of use of one foot which is 

ratable at less than 50 percent disabling 

and which is the only compensable 

disability other than bilateral blindness, 

entitles the veteran to the next higher 

intermediate rate. If the veteran is 

already entitled to an intermediate rate, 

the veteran will be entitled to the next 

higher rate under 38 U.S.C. 1114. 

However, the rate cannot exceed the rate 

under 38 U.S.C. 1114(o). 

(d) Additional independent disability 

or disabilities ratable at 50 percent or 

more disabling. (1) If a veteran is 

entitled to SMC under one of the rates 

payable under §§ 5.324 through 5.329 

and also has a permanent disability, or 

combination of permanent disabilities, 

which are independently ratable at 50 

percent or more disabling, VA will 

award the veteran SMC at the next 

higher intermediate rate. If the veteran 

is already entitled to an intermediate 

rate, VA will award the next higher rate 

under 38 U.S.C. 1114. However, the rate 

payable pursuant to this paragraph 

cannot exceed the rate under 38 U.S.C. 

1114(o). This benefit may not be paid 

concurrently with the 100 percent rate 

pursuant to 38 U.S.C. 1114(p) under 

§ 5.331(e). 

(2) ‘‘Independently ratable’’ means 

that the additional disability or 

disabilities ratable at 50 percent or more 

disabling are separate and distinct, and 

involve different anatomical segments 

or bodily systems, from the disability or 

disabilities establishing entitlement 

under §§ 5.324 through 5.329. If the 

bases for the additional disability or 

disabilities and the basis for entitlement 

to SMC under §§ 5.324 through 5.329 

are caused by the same disease or 

injury, VA cannot pay the next higher 

intermediate rate unless the additional 

disability or disabilities would be rated 

50 percent or more disabling without 

regard to the basis for entitlement to 

SMC under §§ 5.324 through 5.329. 

(3) Permanent residuals of 

tuberculosis, and not the graduated 

ratings for arrested tuberculosis, may 

serve as the basis for the independent 50 

percent disability rating. 

(e) Additional independent disability 

ratable at 100 percent. (1) If a veteran 

is entitled to SMC at one of the rates 

payable under §§ 5.324 through 5.329 

and has a single permanent disability 

that is independently ratable at 100 

percent disabling, VA will award the 

veteran the next higher rate under 38 

U.S.C. 1114. If the veteran is receiving 

SMC at an intermediate rate, VA will 

award to the next higher intermediate 

rate. The single permanent disability 

must be independently ratable at 100 

percent disabling without regard to 

individual unemployability. The rate 

assigned under this paragraph cannot 

exceed the rate under 38 U.S.C. 1114(o). 

It cannot be paid concurrently with the 

50 percent-or-more rate payable under 

paragraph (d) of this section. 

(2) For the definition of 

‘‘independently ratable,’’ see paragraph 

(d)(2) of this section. 


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(3) Permanent residuals of 

tuberculosis, and not the graduated 

ratings for arrested tuberculosis, may 

serve as the basis for the independent 

100 percent disability rating. 

(f) Three extremities. Anatomical loss, 

loss of use, or a combination of 

anatomical loss and loss of use of three 

extremities entitles the veteran to the 

next higher intermediate rate. If the 

veteran is already entitled to an 

intermediate rate, the veteran will be 

entitled to the next higher rate under 38 

U.S.C. 1114. VA will combine the 

anatomical loss or loss of use of 

whichever two extremities will provide 

the veteran with the highest level of 

SMC before combining the third 

anatomical loss or loss of use of an 

extremity to award the next higher rate. 

However, this combined rate cannot 

exceed the rate under 38 U.S.C. 1114(o). 

When there is entitlement for triple 

extremity or blindness with extremity, it 

will be in addition to any entitlement 

under 38 U.S.C. 1114(k) or (p) for the 50 

or 100 percent elevations for the same 

extremity. 

(Authority: 38 U.S.C. 1114(p)) 

§ 5.332 Additional allowance for regular 

aid and attendance under 38 U.S.C. 

1114(r)(1) or for a higher level of care under 

38 U.S.C. 1114(r)(2). 

(a) General. The additional allowance 

that 38 U.S.C. 1114(r) authorizes is 

payable whether the need for regular aid 

and attendance or for a higher level of 

care is a partial basis for entitlement to 

the maximum rate under 38 U.S.C. 

1114(o) or (p), or to the intermediate 

rate between 38 U.S.C. 1114(n) and (o) 

plus the rate under 38 U.S.C. 1114(k), or 

is based on an independent factual 

determination. 

(b) Criteria for additional allowance 

under 38 U.S.C. 1114(r)(1). A veteran is 

entitled to an additional allowance 

under 38 U.S.C. 1114(r)(1) when all of 

the following conditions are met: 

(1) The veteran is entitled to the 

maximum rate under 38 U.S.C. 1114(o) 

or (p), or to the intermediate rate 

between 38 U.S.C. 1114(n) and (o) plus 

the rate under 38 U.S.C. 1114(k); 

(2) The veteran meets the 

requirements for regular aid and 

attendance under § 5.320; and 

(3) The veteran is not hospitalized at 

United States Government expense. 

(c) Criteria for additional allowance 

under 38 U.S.C. 1114(r)(2). (1) General 

criteria. A veteran is entitled to an 

additional allowance under 38 U.S.C. 

1114(r)(2), instead of the allowance 

under 38 U.S.C. 1114(r)(1), when all of 

the following conditions are met: 

(i) The veteran is entitled to the 

maximum rate under 38 U.S.C. 1114(o) 

or (p), or to the intermediate rate 

between 38 U.S.C. 1114(n) and (o) plus 

the rate under 38 U.S.C. 1114(k); 

(ii) The veteran meets the 

requirements for regular aid and 

attendance under § 5.320; 

(iii) The veteran needs a ‘‘higher level 

of care’’ (as defined in paragraph (c)(2) 

of this section); 

(iv) Without the higher level of care, 

the veteran would require 

hospitalization, nursing home care, or 

other residential institutional care; and 

(v) The veteran is not hospitalized at 

United States Government expense. 

(2) Higher level of care. For the 

purposes of this section, a veteran needs 

a ‘‘higher level of care’’ whenever the 

veteran requires personal healthcare 

services provided on a daily basis in the 

veteran’s residence by a person who is 

licensed to provide these services or 

who provides these services under the 

regular supervision of a licensed 

healthcare professional. 

(3) Personal healthcare services. For 

the purposes of this section, ‘‘personal 

healthcare services’’ include, but are not 

limited to, physical therapy, 

administration of injections, placement 

of indwelling catheters, the changing of 

sterile dressings, or similar functions, 

the performance of which requires 

professional healthcare training or the 

regular supervision of a trained 

healthcare professional. 

(4) Licensed healthcare professional. 

For the purposes of this section, a 

‘‘licensed healthcare professional’’ 

includes, but is not limited to, a doctor 

of medicine or osteopathy, a registered 

nurse, a licensed practical nurse, or a 

physical therapist licensed to practice 

by a State or a political subdivision of 

a State. 

(5) Under the regular supervision of a 

licensed healthcare professional. For the 

purposes of this section, the term 

‘‘under the regular supervision of a 

licensed healthcare professional’’ means 

that an unlicensed person performing 

personal healthcare services is following 

a regimen of personal healthcare 

services prescribed by a healthcare 

professional, and that the healthcare 

professional consults with the 

unlicensed person providing the 

healthcare services at least once each 

month to monitor the prescribed 

regimen. The consultation need not be 

in person; a telephone call is sufficient. 

(6) Care may be provided by a relative 

of the veteran or a member of the 

veteran’s household. A relative of the 

veteran or a member of the veteran’s 

household may perform the necessary 

personal healthcare services. However, 

such a person must be a licensed 

healthcare professional or provide the 

necessary personal healthcare services 

under the regular supervision of a 

licensed healthcare professional. 

(Authority: 38 U.S.C. 1114(r)) 

§ 5.333 Special monthly compensation 

under 38 U.S.C. 1114(s). 

Special monthly compensation (SMC) 

under 38 U.S.C. 1114(s) is payable to a 

veteran who has a single serviceconnected disability rated as 100 

percent disabling and either: 

(a) An additional service-connected 

disability, or combination of disabilities, 

ratable as 60 percent disabling 

independent of the single serviceconnected disability rated as 100 

percent; or 

(b) Is permanently housebound as a 

result of service-connected disability or 

disabilities. For the purposes of this 

section, a veteran is permanently 

housebound if he or she is substantially 

confined to his or her residence (ward 

or clinical areas, if institutionalized) 

and immediate premises because of a 

service-connected disability or 

disabilities, and it is reasonably certain 

that such disability or disabilities will 

remain throughout the veteran’s 

lifetime. 

(Authority: 38 U.S.C. 1114(s)) 

§ 5.334 Special monthly compensation 

tables. 

(a) General. The tables in this section 

are meant as aids to summarize the 

statutory or intermediate rate of special 

monthly compensation (SMC) payable 

to veterans under 38 U.S.C. 1114 for 

certain combinations of disabilities. The 

regulatory text in §§ 5.323 through 5.333 

describes these benefits in more detail. 

No additional rights or benefits are 

conferred by this section. The tables are 

informative only and will not be used as 

a basis to grant or deny benefits in a 

particular case. 

(b) Symbols. The following defines 

the symbols used in the tables in this 

section: 

L = the rate under 38 U.S.C. 1114(l). 

L1⁄2 = the intermediate rate between 38 U.S.C. 

1114(l) and (m). 

M = the rate under 38 U.S.C. 1114(m). 

M1⁄2 = the intermediate rate between 38 

U.S.C. 1114(m) and (n). 

N = the rate under 38 U.S.C. 1114(n). 

N1⁄2 = the intermediate rate between 38 

U.S.C. 1114(n) and (o). 

O = the rate under 38 U.S.C 1114(o). 

(c) Usage. In Tables 1 through 4, the 

columns and rows are labeled with 

specific disabilities or combinations of 

disabilities. The point where a column 

and row intersect represents the rate or 

intermediate rate of SMC payable for the 

specified combination of disabilities. 

For example, in Table 1, a veteran who 


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has the anatomical loss or loss of use of 

one leg at a level, or with complications, 

preventing natural knee action with 

prosthesis in place and anatomical loss 

of one arm so near the shoulder as to 

prevent the use of prosthetic appliances 

is entitled to the intermediate rate of 

SMC between 38 U.S.C. 1114(m) and (n) 

(symbol M1⁄2). 

(d) Table 1. To determine the level of 

SMC payable when there are varying 

degrees of anatomical loss or loss of use 

of two extremities, identify the proper 

degree of loss for one extremity along 

the top row of Table 1 and the proper 

degree of loss for the other extremity 

down the left column. The square where 

the column and row intersect contains 

the symbol for the level of SMC payable 

and the regulatory citation that supports 

it. 

TABLE 1—SMC—EXTREMITIES ONLY

Extremities 

Anatomical 

loss or loss of 

use: one foot 

Anatomical 

loss or loss of 

use: one hand 

Anatomical 

loss or loss of 

use: one leg & 

no knee action 

Anatomical 

loss or loss of 

use: one arm 

& no elbow 

action 

Anatomical 

loss of one 

leg: near hip 

Anatomical 

loss of one 

arm: near 

shoulder 

Anatomical loss or loss of use: one foot L 

§ 5.324(a) 

L 

§ 5.324(b) 

L1⁄2

§ 5.325(a) 

L1⁄2

§ 5.325(b) 

M 

§ 5.326(c) 

M 

§ 5.326(d) 

Anatomical loss or loss of use: one hand L 

§ 5.324(b) 

M 

§ 5.326(a) 

L1⁄2

§ 5.325(c) 

M1⁄2

§ 5.327(a) 

M 

§ 5.326(f) 

N 

§ 5.328(b) 

Anatomical loss or loss of use: one leg & 

no knee action ...................................... L1⁄2

§ 5.325(a) 

L1⁄2

§ 5.325(c) 

M 

§ 5.326(b) 

M 

§ 5.326(e) 

M1⁄2

§ 5.327(b) 

M1⁄2

§ 5.327(c) 

Anatomical loss or loss of use: one arm 

& no elbow action ................................. L1⁄2

§ 5.325(b) 

M1⁄2

§ 5.327(a) 

M 

§ 5.326(e) 

N 

§ 5.328(a) 

M1⁄2

§ 5.327(d) 

N1⁄2

§ 5.329 

Anatomical loss of one leg: near hip ....... M 

§ 5.326(c) 

M 

§ 5.326(f) 

M1⁄2

§ 5.327(b) 

M1⁄2

§ 5.327(d) 

N 

§ 5.328(c) 

N 

§ 5.328(d) 

Anatomical loss of one arm: near shoulder ........................................................ M 

§ 5.326(d) 

N 

§ 5.328(b) 

M1⁄2

§ 5.327(c) 

N1⁄2

§ 5.329 

N 

§ 5.328(d) 

O 

§ 5.330(a) 

(e) Table 2. To determine the level of 

SMC payable when there are varying 

degrees of blindness in both eyes, 

identify the proper degree of blindness 

for one eye down the left column of 

Table 2 and the proper degree of 

blindness for the other eye along the top 

row. The square where the column and 

row intersect contains the symbol for 

the level of SMC payable and the 

regulatory citation that supports it. 

TABLE 2—SMC BASED ON BILATERAL BLINDNESS

Vision in one eye 

Vision in other eye 

Visual acuity 

of 5/200 or 

less 

Visual field 

contraction to 

5° or less 

Light 

perception 

only 

No light 

perception 

Anatomical 

loss of eye 

Visual acuity of 5/200 or less .............................................. L 

§ 5.324(c) 

L 

§ 5.324(c) 

L1⁄2

§ 5.325(d) 

M 

§ 5.326(h) 

M 

§ 5.326(h) 

Visual field contraction to 5° or less .................................... L 

§ 5.324(c) 

L 

§ 5.324(c) 

L1⁄2

§ 5.325(d) 

M 

§ 5.326(h) 

M 

§ 5.326(h) 

Light perception only ............................................................ L1⁄2

§ 5.325(d) 

L1⁄2

§ 5.325(d) 

M 

§ 5.326(g) 

M1/2 

§ 5.327(e) 

M1⁄2

§ 5.327(e) 

No light perception ............................................................... M 

§ 5.326(h) 

M 

§ 5.326(h) 

M1⁄2

§ 5.327(e) 

N 

§ 5.328(e) 

N 

§ 5.328(e) 

Anatomical loss of eye ......................................................... M 

§ 5.326(h) 

M 

§ 5.326(h) 

M1⁄2

§ 5.327(e) 

N 

§ 5.328(e) 

N 

§ 5.328(e) 

(f) Table 3. To determine the level of 

SMC when there is bilateral blindness 

together with anatomical loss or loss of 

use of an extremity, identify the level of 

SMC for bilateral blindness from Table 

3 and locate it along the top row. Then 

identify the proper extremity loss down 

the left column. The square where the 

column and row intersect contains the 

symbol for the level of SMC payable and 

the regulatory citation that supports it. 


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TABLE 3—SMC—BILATERAL BLINDNESS WITH ANATOMICAL LOSS OR LOSS OF USE OF EXTREMITY

Additional disability 

SMC for bilateral blindness alone 

‘‘L’’ ‘‘L1⁄2’’ ‘‘M’’ ‘‘M1⁄2’’ ‘‘N’’ 

Service-connected anatomical loss or loss of use of one 

foot rated less than 50%, and it is the only compensable 

disability other than blindness .......................................... L1⁄2 + K 

L 

§ 5.331(c)(3); 

§ 5.323(b)(2) 

M + K 

L 

§ 5.331(c)(3); 

§ 5.323(b)(2) 

M1⁄2 + K 

L 

§ 5.331(c)(3); 

§ 5.323(b)(2) 

N + K 

L 

§ 5.331(c)(3); 

§ 5.323(b)(2) 

N1⁄2 + K 

L 

§ 5.331(c)(3); 

§ 5.323(b)(2) 

Service-connected anatomical loss or loss of use of one 

foot rated 50% or more, either alone or in combination 

with another disability ....................................................... M + K 

L 

§ 5.331(c)(2); 

§ 5.323(b)(2) 

M1⁄2 + K 

L 

§ 5.331(c)(2); 

§ 5.323(b)(2) 

N + K 

L 

§ 5.331(c)(2); 

§ 5.323(b)(2) 

N1⁄2 + K 

L 

§ 5.331(c)(2); 

§ 5.323(b)(2) 

O 

L 

§ 5.331(c)(2); 

Service-connected anatomical loss or loss of use of one 

hand .................................................................................. M + K 

L 

§ 5.331(c)(1); 

§ 5.323(b)(2) 

M1⁄2 + K 

L 

§ 5.331(c)(1); 

§ 5.323(b)(2) 

N + K 

L 

§ 5.331(c)(1); 

§ 5.323(b)(2) 

N1⁄2 + K 

L 

§ 5.331(c)(1); 

§ 5.323(b)(2) 

O 

L 

§ 5.331(c)(1) 

(g) Table 4. To determine the level of 

SMC when there is bilateral blindness 

together with deafness, identify the 

level of SMC for bilateral blindness from 

Table 4 and locate it along the top row. 

Then identify the proper degree of 

deafness down the left column. The 

square where the column and row 

intersect contains the symbol for the 

level of SMC payable and the regulatory 

citation that supports it. 

TABLE 4—SPECIAL MONTHLY COMPENSATION—BILATERAL BLINDNESS WITH DEAFNESS

Additional disability 

SMC for bilateral blindness alone 

‘‘L’’ ‘‘L1⁄2’’ 

‘‘M’’ 

under 

§ 5.326(h) or 

(i) 

‘‘M’’ 

under 

§ 5.326(g) 

‘‘M1⁄2’’ ‘‘N’’ 

Service-connected (SC) total deafness in 

one ear ................................................. L1⁄2

§ 5.331(b)(1) 

M 

§ 5.331(b)(1) 

M1⁄2

§ 5.331(b)(1) 

O 

§ 5.330(c) 

O 

§ 5.330(c) 

O 

§ 5.330(c) 

Bilateral deafness rated 10% or 20% 

(one or both ears SC) .......................... L No 

additional 

SMC 

L No 

additional 

SMC 

L No 

additional 

SMC 

M1⁄2

§ 5.331(b)(2) 

N 

§ 5.331(b)(2) 

N1⁄2

§ 5.331(b)(2) 

Bilateral deafness rated 30% (one or 

both ears SC) ....................................... M 

§ 5.331(b)(3) 

M1⁄2

§ 5.331(b)(3) 

N 

§ 5.331(b)(3) 

N 

§ 5.331(b)(3) 

N1⁄2

§ 5.331(b)(3) 

O 

§ 5.331(b)(3) 

Bilateral deafness rated 40% or 50% 

(one or both ears SC) .......................... M 

§ 5.331(b)(3) 

M1⁄2

§ 5.331(b)(3) 

N 

§ 5.331(b)(3) 

O 

§ 5.330(c) 

O 

§ 5.330(c) 

O 

§ 5.330(c) 

Bilateral deafness rated 60% or more 

(one or both ears SC) .......................... O 

§ 5.330(b) 

O 

§ 5.330(b) 

O 

§ 5.330(b) 

O 

§ 5.330(b) 

O 

§ 5.330(b) 

O 

§ 5.330(b) 

(Authority: 38 U.S.C. 1114) 

§ 5.335 Effective dates—Special monthly 

compensation under §§ 5.332 and 5.333. 

(a) General Rule. Except as provided 

in § 3.400(o)(2) of this chapter 

(regarding effective dates for increased 

disability), and in paragraph (b) of this 

section, the effective date for an award 

of special monthly compensation (SMC) 

under §§ 5.332, ‘‘Additional allowance 

for regular aid and attendance under 38 

U.S.C. 1114(r)(1) or for a higher level of 

care under 38 U.S.C. 1114(r)(2),’’ or 

5.333, ‘‘Special monthly compensation 

under 38 U.S.C. 1114(s),’’ will be the 

date of receipt of the claim or the date 

entitlement arose, whichever is later. 

(b) Retroactive award of SMC. When 

VA awards disability compensation, 

based on an original or reopened claim, 

for a retroactive period, VA will also 

award SMC for all or any part(s) of that 

retroactive period during which the 

veteran met the eligibility requirements 

for SMC. 

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

§ 5.336 Effective dates—additional 

compensation for regular aid and 

attendance payable for a veteran’s spouse 

under § 5.321. 

(a) Award of regular aid and 

attendance. (1) The effective date for an 

award of additional compensation 

payable to a veteran because of the 

veteran’s spouse’s need for regular aid 

and attendance will be the date of 

receipt of the claim or the date 

entitlement arose, whichever is later. 

(2) When disability compensation, 

based on an original or reopened claim, 

is awarded retroactive to an effective 

date prior to the date of receipt of the 


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claim, regular aid and attendance for the 

spouse will also be awarded for any part 

of the prior period for which 

entitlement to regular aid and 

attendance for the spouse is established. 

(b) Discontinuance of award of 

regular aid and attendance. The 

effective date for the discontinuance of 

regular aid and attendance will be the 

end of the month in which VA stops 

paying the aid and attendance. 

Cross References: § 3.501(b)(3) of this 

chapter, ‘‘Veterans [effective dates for 

reduction or discontinuance of benefits].’’ 

(Authority: 38 U.S.C. 501, 5110(b)(1), (2)) 

§ 5.337 Award of special monthly 

compensation based on the need for 

regular aid and attendance during period of 

hospitalization. 

An award of special monthly 

compensation (SMC) based on a need 

for regular aid and attendance under 

§ 5.324, ‘‘Special monthly compensation 

under 38 U.S.C. 1114(l),’’ that is made 

for a period during which the veteran is 

or was receiving hospital, institutional, 

or domiciliary care at VA expense will 

be effective on the date of discharge or 

release from hospitalization. If the 

award is retroactive, VA will not 

provide compensation based on the 

need for regular aid and attendance for 

the period during which the veteran was 

receiving hospital, institutional, or 

domiciliary care at VA expense. 

§§ 5.338–5.339 [Reserved] 

Tuberculosis 

§ 5.340 Pulmonary tuberculosis shown by 

X-ray in active service. 

(a) Active disease. X-ray evidence 

alone may be adequate for grant of 

direct service connection for pulmonary 

tuberculosis. When under 

consideration, all available service 

department films and subsequent films 

will be secured and read by specialists 

at designated stations who should have 

a current examination report and X-ray. 

Resulting interpretations of service films 

will be accorded the same consideration 

for service connection purposes as if 

clinically established, however, a 

compensable rating will not be assigned 

prior to establishment of an active 

condition by approved methods. 

(b) Inactive disease. Where the 

veteran was examined at the time of 

entrance into active service but no X-ray 

was made, or if made, is not available 

and there was no notation or other 

evidence of active or inactive reinfection type pulmonary tuberculosis 

existing prior to such entrance, it will be 

assumed that the condition occurred 

during service and direct service 

connection will be in order for inactive 

pulmonary tuberculosis shown by X-ray 

evidence during service in the manner 

prescribed in paragraph (a) of this 

section, unless lesions are first shown so 

soon after entry on active service as to 

compel the conclusion, on the basis of 

sound medical principles, that they 

existed prior to entry on active service. 

(c) Primary lesions. Healed primary 

type tuberculosis shown at the time of 

entrance into active service will not be 

taken as evidence to rebut direct or 

presumptive service connection for 

active re-infection type pulmonary 

tuberculosis. 

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

§ 5.341 Presumptive service connection 

for tuberculous disease; wartime and 

service after December 31, 1946. 

(a) Pulmonary tuberculosis. (1) 

Evidence of activity on comparative 

study of X-ray films showing pulmonary 

tuberculosis within the 3-year 

presumptive period provided by 

§ 5.261(d) will be taken as establishing 

service connection for active pulmonary 

tuberculosis subsequently diagnosed by 

approved methods but service 

connection and rating may be assigned 

only from the date of such diagnosis or 

other evidence of clinical activity. 

(2) A notation of inactive tuberculosis 

of the re-infection type at induction or 

enlistment definitely prevents the grant 

of service connection under § 5.261 for 

active tuberculosis, regardless of the fact 

that it was shown within the 

appropriate presumptive period. 

(b) Pleurisy with effusion without 

obvious cause. Pleurisy with effusion 

with evidence of diagnostic studies 

ruling out obvious nontuberculous 

causes will qualify as active 

tuberculosis. The requirements for 

presumptive service connection will be 

the same as those for tuberculous 

pleurisy. 

(c) Tuberculous pleurisy and 

endobronchial tuberculosis. 

Tuberculous pleurisy and 

endobronchial tuberculosis fall within 

the category of pulmonary tuberculosis 

for the purpose of service connection on 

a presumptive basis. Either will be held 

incurred in service when initially 

manifested within the 3-year 

presumptive period provided by 

§ 5.261(d). 

(d) Miliary tuberculosis. Service 

connection for miliary tuberculosis 

involving the lungs is to be determined 

in the same manner as for other active 

pulmonary tuberculosis. 

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

§ 5.342 Initial grant following inactivity of 

tuberculosis. 

When service connection is granted 

initially on an original or reopened 

claim for pulmonary or nonpulmonary 

tuberculosis and there is satisfactory 

evidence that the condition was active 

previously but is now inactive 

(arrested), it will be presumed that the 

disease continued to be active for 1 year 

after the last date of established activity, 

provided there is no evidence to 

establish activity or inactivity in the 

intervening period. For a veteran 

entitled to receive compensation on 

August 19, 1968, the beginning date of 

graduated ratings will commence at the 

end of the 1-year period. For a veteran 

who was not receiving or entitled to 

receive compensation on August 19, 

1968, ratings will be assigned in 

accordance with the Schedule for Rating 

Disabilities in part 4 of this chapter. 

This section is not applicable to running 

award cases. 

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

§ 5.343 Effect of diagnosis of active 

tuberculosis. 

(a) Service diagnosis. Service 

department diagnosis of active 

pulmonary tuberculosis will be 

accepted unless a board of medical 

examiners, a Clinic Director, or Chief, 

Outpatient Service certifies, after 

considering all the evidence, including 

the favoring or opposing tuberculosis 

and activity, that such diagnosis was 

incorrect. Doubtful cases may be 

referred to the Under Secretary for 

Health in Central Office. 

(b) Department of Veterans Affairs 

diagnosis. Diagnosis of active 

pulmonary tuberculosis by the medical 

authorities of VA as the result of 

examination, observation, or treatment 

will be accepted for rating purposes. In 

a case where there is no such diagnosis, 

but there is evidence that the veteran 

has tuberculosis, the case will be 

referred to the Clinic Director or Chief, 

Outpatient Service, and, if necessary, to 

the Under Secretary for Health in 

Central Office. 

(c) Private physician’s diagnosis. 

Diagnosis of active pulmonary 

tuberculosis by private physicians based 

on their examination, observation or 

treatment will not be accepted to show 

the disease was initially manifested 

within the presumptive period after 

discharge from active service unless 

confirmed by acceptable clinical, X-ray 

or laboratory studies, or by findings of 

active tuberculosis based upon 

acceptable hospital observation or 

treatment. 

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


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§ 5.344 Determination of inactivity 

(complete arrest) of tuberculosis. 

(a) Pulmonary tuberculosis. A veteran 

shown to have had pulmonary 

tuberculosis will be held to have 

reached a condition of ‘‘complete 

arrest’’ when a diagnosis of inactive is 

made. 

(b) Nonpulmonary disease. 

Determination of complete arrest of 

nonpulmonary tuberculosis requires 

absence of evidence of activity for 6 

months. If there are two or more foci of 

such tuberculosis, one of which is 

active, the condition will not be 

considered to be inactive until the 

tuberculous process has reached arrest 

in its entirety. 

(c) Arrest following surgery. Where 

there has been surgical excision of the 

lesion or organ, the date of complete 

arrest will be the date of discharge from 

the hospital, or 6 months from the date 

of excision, whichever is later. 

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

§ 5.345 Changes from activity in 

pulmonary tuberculosis pension cases. 

A permanent and total disability 

rating in effect during hospitalization 

will not be discontinued before hospital 

discharge based on a change in 

classification from active. At hospital 

discharge, the permanent and total 

rating will be discontinued unless the 

medical evidence does not support a 

finding of complete arrest (see § 5.344) 

or where complete arrest is shown but 

the medical authorities recommend that 

employment not be resumed or be 

resumed only for short hours (not more 

than 4 hours a day for a 5-day week). If 

either of the two aforementioned 

conditions is met, discontinuance will 

be deferred pending examination in 6 

months. Although complete arrest may 

be established upon that examination, 

the permanent and total rating may be 

extended for a further period of 6 

months provided the veteran’s 

employment is limited to short hours as 

recommended by the medical 

authorities (not more than 4 hours a day 

for a 5-day week). Similar extensions 

may be granted under the same 

conditions at the end of 12 and 18- 

month periods. At the expiration of 24 

months after hospitalization, the case 

will be considered under § 3.321(b) of 

this chapter if continued short hours of 

employment are recommended or if 

other evidence warrants submission. 

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

§ 5.346 Tuberculosis and compensation 

under 38 U.S.C. 1114(q) and 1156. 

(a) General. Any veteran who, on 

August 19, 1968, was receiving or 

entitled to receive compensation for 

active or inactive (arrested) tuberculosis 

may receive compensation under 38 

U.S.C. 1114(q) and 1156 as in effect 

before August 20, 1968. 

(b) Special monthly compensation 

(SMC) under 38 U.S.C. 1114(q) for 

inactive tuberculosis (complete arrest). 

(1)(i) For a veteran who was receiving or 

entitled to receive compensation for 

tuberculosis on August 19, 1968, the 

minimum monthly rate is $67. This 

minimum SMC is not to be combined 

with or added to any other disability 

compensation. The rating criteria for 

determining inactivity of tuberculosis 

are set out in § 5.344. 

(ii) The effective date for special 

monthly compensation (SMC) under 

paragraph (b)(1)(i) of this section will be 

the date the graduated rating of the 

disability or compensation for that 

degree of disablement combined with 

other service-connected disabilities 

provides compensation payable at a rate 

less than $67. 

(2) For a veteran who was not 

receiving or entitled to receive 

compensation for tuberculosis on 

August 19, 1968, the SMC authorized by 

paragraph (b)(1) of this section is not 

payable. 

(Authority: 38 U.S.C. 501(a); Pub. L. 90–493, 

82 Stat. 809) 

§ 5.347 Continuance of a total disability 

rating for service-connected tuberculosis. 

In service-connected cases, ratings for 

active or inactive tuberculosis will be 

governed by the Schedule for Rating 

Disabilities in part 4 of this chapter. 

Where in the opinion of the agency of 

original jurisdiction the veteran at the 

expiration of the period during which a 

total rating is provided will not be able 

to maintain inactivity of the disease 

process under the ordinary conditions 

of life, the case will be submitted under 

§ 3.321(b) of this chapter. 

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

§§ 5.348–5.349 [Reserved] 

Injury or Death Due to Hospitalization 

or Treatment 

§ 5.350 Benefits under 38 U.S.C. 1151(a) 

for additional disability or death due to 

hospital care, medical or surgical treatment, 

examination, training and rehabilitation 

services, or compensated work therapy 

program. 

(a) Claims subject to this section. (1) 

General. Except as provided in 

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

section applies to claims received by VA 

after September 30, 1997. This includes 

original claims and claims to reopen or 

otherwise readjudicate a previous claim 

for benefits under 38 U.S.C. 1151 or its 

predecessors. The effective date of 

benefits is subject to § 5.351. For claims 

received by VA before October 1, 1997, 

see § 3.358 of this chapter. 

(2) Compensated Work Therapy. With 

respect to claims alleging disability or 

death due to compensated work 

therapy, this section applies to claims 

that were pending before VA on 

November 1, 2000, or that were received 

by VA after that date. The effective date 

of benefits is subject to §§ 5.152(a) and 

5.351, and shall not be earlier than 

November 1, 2000. 

(b) Determining whether a veteran has 

an additional disability. To determine 

whether a veteran has an additional 

disability, VA will compare the 

veteran’s condition immediately before 

the beginning of the hospital care, 

medical or surgical treatment, 

examination, training and rehabilitation 

services, or compensated work therapy 

(CWT) program upon which the claim is 

based to the veteran’s condition after 

such care, treatment, examination, 

services, or program has stopped. VA 

considers each involved body part or 

system separately. 

(c) Establishing the cause of 

additional disability or death. Claims 

based on additional disability or death 

due to hospital care, medical or surgical 

treatment, or examination must meet the 

causation requirements of this 

paragraph and paragraph (d)(1) or (d)(2) 

of this section. Claims based on 

additional disability or death due to 

training and rehabilitation services or 

CWT program must meet the causation 

requirements of paragraph (d)(3) of this 

section. 

(1) Actual causation required. To 

establish causation, the evidence must 

show that the hospital care, medical or 

surgical treatment, or examination 

resulted in the veteran’s additional 

disability or death. Merely showing that 

a veteran received care, treatment, or 

examination and that the veteran has an 

additional disability or died does not 

establish cause. 

(2) Continuance or natural progress of 

injury or disease. Hospital care, medical 

or surgical treatment, or examination 

cannot cause the continuance or natural 

progress of injury or disease for which 

the care, treatment, or examination was 

furnished unless VA’s failure to timely 

diagnose and properly treat the disease 

or injury proximately caused the 

continuance or natural progress. The 

provision of training and rehabilitation 

services or CWT program cannot cause 

the continuance or natural progress of 

injury or disease for which the services 

were provided. 

(3) Veteran’s failure to follow medical 

instructions. Additional disability or 

death caused by a veteran’s failure to 


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follow properly given medical 

instructions is not caused by hospital 

care, medical or surgical treatment, or 

examination. 

(d) Establishing the proximate cause 

of additional disability or death. The 

proximate cause of disability or death is 

the action or event that directly caused 

the disability or death, as distinguished 

from a remote contributing cause. 

(1) Care, treatment, or examination. 

To establish that carelessness, 

negligence, lack of proper skill, error in 

judgment, or similar instance of fault on 

VA’s part in furnishing hospital care, 

medical or surgical treatment, or 

examination proximately caused a 

veteran’s additional disability or death, 

it must be shown that the hospital care, 

medical or surgical treatment, or 

examination caused the veteran’s 

additional disability or death (as 

explained in paragraph (c) of this 

section); and 

(i) VA failed to exercise the degree of 

care that would be expected of a 

reasonable healthcare provider; or 

(ii) VA furnished the hospital care, 

medical or surgical treatment, or 

examination without the veteran’s or, in 

appropriate cases, the veteran’s 

representative’s informed consent. To 

determine whether there was informed 

consent, VA will consider whether the 

healthcare providers substantially 

complied with the requirements of 

§ 17.32 of this chapter. Minor deviations 

from the requirements of § 17.32 of this 

chapter that are immaterial under the 

circumstances of a case will not defeat 

a finding of informed consent. Consent 

may be express (i.e., given orally or in 

writing) or implied under the 

circumstances specified in § 17.32(b) of 

this chapter, as in emergency situations. 

(2) Events not reasonably foreseeable. 

Whether the proximate cause of a 

veteran’s additional disability or death 

was an event not reasonably foreseeable 

is in each claim to be determined based 

on what a reasonable health care 

provider would have foreseen. The 

event need not be completely 

unforeseeable or unimaginable but must 

be one that a reasonable healthcare 

provider would not have considered an 

ordinary risk of the treatment provided. 

In determining whether an event was 

reasonably foreseeable, VA will 

consider whether the risk of that event 

was the type of risk that a reasonable 

health care provider would have 

disclosed in connection with the 

informed consent procedures of § 17.32 

of this chapter. 

(3) Training and rehabilitation 

services or compensated work therapy 

program. To establish that the provision 

of training and rehabilitation services or 

a CWT program proximately caused a 

veteran’s additional disability or death, 

it must be shown that the veteran’s 

participation in an essential activity or 

function of the training, services, or 

CWT program provided or authorized 

by VA proximately caused the disability 

or death. The veteran must have been 

participating in such training, services, 

or CWT program provided or authorized 

by VA as part of an approved 

rehabilitation program under 38 U.S.C. 

chapter 31 or as part of a CWT program 

under 38 U.S.C. 1718. It need not be 

shown that VA approved that specific 

activity or function, as long as the 

activity or function is generally 

accepted as being a necessary 

component of the training, services, or 

CWT program that VA provided or 

authorized. 

(e) Department employees and 

facilities. (1) A Department employee is 

an individual: 

(i) Who is appointed by the 

Department in the civil service under 

title 38, United States Code, or title 5, 

United States Code, as an employee as 

defined in 5 U.S.C. 2105; 

(ii) Who is engaged in furnishing 

hospital care, medical or surgical 

treatment, or examinations under 

authority of law; and 

(iii) Whose day-to-day activities are 

subject to supervision by the Secretary 

of Veterans Affairs. 

(2) A Department facility is a facility 

over which the Secretary of Veterans 

Affairs has direct jurisdiction. 

(f) Activities that are not hospital 

care, medical or surgical treatment, or 

examination furnished by a Department 

employee or in a Department facility. 

The following are not hospital care, 

medical or surgical treatment, or 

examination furnished by a Department 

employee or in a Department facility 

within the meaning of 38 U.S.C. 1151(a): 

(1) Hospital care or medical services 

furnished under a contract made under 

38 U.S.C. 1703. 

(2) Nursing home care furnished 

under 38 U.S.C. 1720. 

(3) Hospital care or medical services, 

including, but not limited to, 

examination, provided under 38 U.S.C. 

8153, in a facility over which the 

Secretary does not have direct 

jurisdiction. 

(g) Benefits payable under 38 U.S.C. 

1151 for a veteran’s death after 

December 31, 1956. The benefit payable 

under 38 U.S.C. 1151(a) to an eligible 

survivor for a veteran’s death occurring 

after December 31, 1956, is dependency 

and indemnity compensation. 

(Authority: 38 U.S.C. 1151) 

§ 5.351 Effective dates for awards of 

benefits under 38 U.S.C. 1151(a). 

The effective date for the award of 

compensation under § 5.350 based on 

additional disability or death due to 

hospitalization, medical or surgical 

treatment, examinations, vocational 

rehabilitation training, or compensated 

work therapy will be one of the 

following: 

(a) Disability. Date injury or 

aggravation was suffered if a claim is 

received within one year after that date; 

otherwise, date of receipt of the claim. 

(b) Death. First day of the month in 

which the veteran’s death occurred, if a 

claim is received within one year after 

the date of death; otherwise, date of 

receipt of the claim. 

(c) Compensated work therapy. For an 

award of compensation under § 5.350 

based on additional disability or death 

due to compensated work therapy, see 

also § 5.350(a)(2). 

(Authority: 38 U.S.C. 5110(c)) 

§ 5.352 Effect on benefits awarded under 

38 U.S.C. 1151(a) of Federal Tort Claims Act 

compromises, settlements, and judgments 

entered after November 30, 1962. 

(a) Claims subject to this section. This 

section applies to claims received by VA 

after September 30, 1997. This includes 

original claims and claims to reopen or 

otherwise readjudicate a previous claim 

for benefits under 38 U.S.C. 1151(a) or 

its predecessors. 

(b) Offset of veterans’ awards of 

compensation. If a veteran’s disability is 

the basis of a judgment under 28 U.S.C. 

1346(b) awarded, or a settlement or 

compromise under 28 U.S.C. 2672 or 

2677 entered, after November 30, 1962, 

the amount to be offset under 38 U.S.C. 

1151(b) from any compensation 

awarded under 38 U.S.C. 1151(a) is the 

entire amount of the veteran’s share of 

the judgment, settlement, or 

compromise, including the veteran’s 

proportional share of attorney fees. 

(c) Offset of survivors’ awards of 

dependency and indemnity 

compensation. If a veteran’s death is the 

basis of a judgment under 28 U.S.C. 

1346(b) awarded, or a settlement or 

compromise under 28 U.S.C. 2672 or 

2677 entered, after November 30, 1962, 

the amount to be offset under 38 U.S.C. 

1151(b) from any dependency and 

indemnity compensation awarded 

under 38 U.S.C. 1151(a) to a survivor is 

only the amount of the judgment, 

settlement, or compromise representing 

damages for the veteran’s death the 

survivor receives in an individual 

capacity or as distribution from the 

decedent veteran’s estate of sums 

included in the judgment, settlement, or 

compromise to compensate for harm 


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suffered by the survivor, plus the 

survivor’s proportional share of attorney 

fees. 

(d) Offset of structured settlements. 

This paragraph applies if a veteran’s 

disability or death is the basis of a 

structured settlement or structured 

compromise under 28 U.S.C. 2672 or 

2677 entered after November 30, 1962. 

(1) The amount to be offset. The 

amount to be offset under 38 U.S.C. 

1151(b) from benefits awarded under 38 

U.S.C. 1151(a) is the veteran’s or 

survivor’s proportional share of the cost 

to the United States of the settlement or 

compromise, including the veteran’s or 

survivor’s proportional share of attorney 

fees. 

(2) When the offset begins. The offset 

of benefits awarded under 38 U.S.C. 

1151(a) begins the first month after the 

structured settlement or structured 

compromise has become final that such 

benefits would otherwise be paid. 

(Authority: 38 U.S.C. 1151) 

§ 5.353 Effect on benefits awarded under 

38 U.S.C. 1151(a) of Federal Tort Claims Act 

administrative awards, compromises, 

settlements, and judgments finalized before 

December 1, 1962. 

(a) Claims subject to this section. This 

section applies to claims received by VA 

after September 30, 1997. This includes 

original claims and claims to reopen or 

otherwise readjudicate a previous claim 

for benefits under 38 U.S.C. 1151(a) or 

its predecessors. 

(b) Effect of administrative awards, 

compromises, settlements, or judgments. 

If a veteran’s disability or death was the 

basis of an administrative award under 

28 U.S.C. 1346(b) made, or a settlement 

or compromise under 28 U.S.C. 2672 or 

2677 finalized, before December 1, 1962, 

VA may not award benefits under 38 

U.S.C. 1151(a) for any period after such 

award, settlement, or compromise was 

made or became final. If a veteran’s 

disability or death was the basis of a 

judgment under 28 U.S.C. 1346(b) that 

became final before December 1, 1962, 

VA may award benefits under 38 U.S.C. 

1151(a) for the disability or death unless 

the terms of the judgment provide 

otherwise. 

(Authority: 38 U.S.C. 1151) 

§§ 5.354–5.359 [Reserved] 

Ratings for Healthcare Eligibility Only 

§ 5.360 Service connection of dental 

conditions for treatment purposes. 

(a) General Principles. Eligibility 

requirements for dental treatment are set 

forth in § 17.161 of this chapter. 

(b) Conditions service connected for 

treatment purposes. VA will not pay 

compensation for any of the following 

dental conditions; however, these 

conditions may be service connected 

solely for providing outpatient dental 

treatment: 

(1) Treatable carious teeth. 

(2) Replaceable missing teeth. 

(3) Dental or alveolar abscesses. 

(4) Chronic periodontal disease. 

(c) Conditions not service connected 

for treatment purposes. The following 

conditions will not be service connected 

for outpatient dental treatment 

purposes: 

(1) Calculus. 

(2) Acute periodontal disease. 

(3) Teeth noted at entry as 

nonrestorable, regardless of treatment 

during service. 

(4) Teeth noted as missing at entry, 

regardless of treatment during service. 

(d) Rating principles. VA will 

determine service connection for 

establishing eligibility for outpatient 

dental treatment using the following 

principles: 

(1) VA will consider each defective or 

missing tooth and each disease of the 

teeth and periodontal tissues separately 

to determine whether the condition was 

incurred or aggravated in line of duty 

during active service. 

(2) VA will determine whether the 

condition is due to combat or other inservice trauma. 

(3) VA will consider whether the 

veteran was interned as a prisoner of 

war. 

(4) VA will consider the condition of 

teeth and periodontal tissues at the time 

of entry into active duty. 

(e) Aggravation. Notations of 

conditions made at entry to service and 

treatment of such conditions during 

service (including, but not limited to, 

fillings, extractions, and placement of a 

prosthesis) will not be considered as 

evidence of aggravation, unless 

additional pathology developed after 

180 days or more of active military 

service. 

(1) Teeth noted as normal at entry will 

be service connected for treatment 

purposes if they were filled or extracted 

after 180 days or more of active military 

service. 

(2) Teeth noted as filled at entry will 

be service connected for treatment 

purposes if they were extracted, or if the 

existing filling was replaced, after 180 

days or more of active military service. 

(3) Teeth noted as carious but 

restorable at entry will not be service 

connected for treatment purposes on the 

basis that they were filled during 

service. Service connection may be 

established for treatment purposes if 

new caries developed 180 days or more 

after such teeth were filled. 

(4) Teeth noted as carious but 

restorable at entry will be service 

connected for treatment purposes if 

extraction was required after 180 days 

or more of active military service. 

(5) Third molars will not be service 

connected for treatment purposes unless 

disease or pathology of the tooth 

developed after 180 days or more of 

active military service, or was due to 

combat or in-service trauma. 

(6) Impacted or malposed teeth and 

other developmental defects will not be 

service connected for treatment 

purposes unless disease or pathology of 

the teeth developed after 180 days or 

more of active military service. 

(7) Teeth extracted because of chronic 

periodontal disease will be service 

connected for treatment purposes only if 

they were extracted after 180 days or 

more of active military service. 

(Authority: 38 U.S.C. 1712) 

§ 5.361 Healthcare eligibility of persons 

administratively discharged under otherthan-honorable conditions. 

(a) General. VA will provide 

healthcare and related benefits 

authorized by chapter 17 of title 38 

U.S.C. to certain former service persons 

with administrative discharges under 

other-than-honorable conditions for any 

disability incurred or aggravated during 

active military service in line of duty. 

(b) Eligibility criteria. VA will use the 

same eligibility criteria that are 

applicable to determinations of 

incurrence in service and of incurrence 

in the line of duty when there is no 

character of discharge bar to determine 

a claimant’s health-care eligibility. 

(c) Characterization of discharge. VA 

will not furnish healthcare and related 

benefits for any disability incurred in or 

aggravated during a period of service 

terminated by a bad conduct discharge 

or when one of the character of 

discharge bars listed in § 3.12(c) of this 

chapter applies. 

(Authority: Pub. L. 95–126, 91 Stat. 1106) 

§ 5.362 Presumption of service incurrence 

of active psychosis for purposes of 

hospital, nursing home, domiciliary, and 

medical care. 

(a) Presumption of service incurrence 

for active psychosis. For purposes of 

determining eligibility for hospital, 

nursing home, domiciliary, and medical 

care under chapter 17 of title 38, United 

States Code, VA will presume incurred 

in active military service any active 

psychosis developed by a veteran under 

the circumstances described in 

paragraph (b) of this section. 

(b) Requirements. In order to be 

entitled to a presumption of service 

incurrence for active psychosis for 

purposes of this section, a veteran must 

have served during one of the periods of 


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war specified in the following table and 

developed the psychosis within two 

years after discharge from active 

military service and before the date 

specified in the following table that 

corresponds to the period of war during 

which the veteran served. 

Veterans who served 

during: 

Must have developed 

active psychosis 

within two years after 

discharge from active 

military service and 

before: 

World War II .............. July 26, 1949. 

Korean conflict .......... February 1, 1957. 

Vietnam era ............... May 8, 1977. 

Persian Gulf War ...... The end of two-year 

period beginning on 

the last day of the 

Persian Gulf War. 

Cross Reference: § 5.20, ‘‘Dates of periods 

of war.’’ 

(Authority: 38 U.S.C. 101(16), 105, 501(a), 

1702) 

§ 5.363 Determination of service 

connection for former members of the 

Armed Forces of Czechoslovakia or Poland. 

The agency of original jurisdiction 

will determine whether the condition 

for which treatment is claimed by 

former members of the Armed Forces of 

Czechoslovakia or Poland under 38 

U.S.C. 109(c) is service connected. This 

determination will be made using the 

same criteria that apply to 

determinations of service connection 

based on service in the Armed Forces of 

the United States. 

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

§ 5.364 [Reserved] 

Miscellaneous Service-Connection 

Regulations 

§ 5.365 Claims based on the effects of 

tobacco products. 

(a) Except as provided in paragraph 

(b) of this section, a disability or death 

will not be service connected on any 

basis, including secondary service 

connection under § 3.310 of this 

chapter, if it resulted from injury or 

disease attributable to the veteran’s use 

during service of tobacco products, such 

as cigars, cigarettes, smokeless tobacco, 

pipe tobacco, and roll-your-own 

tobacco. 

(b) Paragraph (a) of this section does 

not prohibit service connection if any of 

the following are true: 

(1) The disability or death resulted 

from injury or disease that is otherwise 

shown to have been incurred or 

aggravated during service, which means 

that the disability or death can be 

service connected on some basis other 

than the veteran’s use of tobacco 

products during service or that the 

disability became manifest or death 

occurred during service; 

(2) The disability or death resulted 

from injury or disease that appeared to 

the required degree of disability within 

any applicable presumptive period 

under §§ 5.260, 5.261, 5.262, 5.263, 

5.264, 5.265, 5.267, or 5.268; or 

(3) Service connection is established 

for ischemic heart disease or other 

cardiovascular disease under § 3.310(c) 

of this chapter as secondary to a 

disability not caused by the use of 

tobacco products during service. 

(Authority: 38 U.S.C. 501(a), 1103, 1103 note) 

§ 5.366 Disability due to impaired hearing. 

VA will consider impaired hearing to 

be a disability when any of the 

following three criteria is satisfied: 

(a) The auditory threshold in any of 

the frequencies of 500, 1000, 2000, 

3,000, or 4000 Hertz is 40 decibels or 

greater; 

(b) The auditory thresholds for at least 

three of the frequencies of 500, 1000, 

2000, 3000, or 4000 Hertz are 26 

decibels or greater; or 

(c) Speech recognition scores using 

the Maryland CNC Test are less than 94 

percent. 

(Authority: 38 U.S.C. 1110) 

§ 5.367 Civil service preference ratings. 

For certifying civil service disability 

preference only, a service-connected 

disability may be assigned a rating of 

less than 10 percent. Any directly or 

presumptively service-connected injury 

or disease that exhibits some extent of 

actual impairment may be held to exist 

at the level of less than 10 percent. For 

disabilities incurred in combat, 

however, no actual impairment is 

required. 

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

§ 5.368 Basic eligibility determinations: 

home loan and education benefits. 

(a) Loans. (1) General. Eligibility of 

certain veterans (listed in paragraph 

(a)(2) of this section) for a loan under 38 

U.S.C. chapter 37 requires a 

determination that the veteran was 

discharged or released because of a 

service-connected disability, or that the 

official service department records show 

that he or she had, at the time of 

separation from service, a serviceconnected disability that in medical 

judgment would have warranted a 

discharge for disability. These 

determinations are subject to the 

presumption of soundness under 

§ 3.304(b) of this chapter. 

Determinations based on World War II, 

Korean conflict, and Vietnam era service 

are also subject to the presumption of 

aggravation under § 3.306(b) of this 

chapter, and determinations based on 

service after January 31, 1955, and 

before August 5, 1964; or after May 7, 

1975, are subject to the presumption of 

aggravation under § 3.306 (a) and (c) of 

this chapter. This paragraph is also 

applicable, regardless of length of 

service, in determining eligibility to the 

maximum period of entitlement based 

on discharge or release for a serviceconnected disability. (See § 5.39, 

‘‘Minimum active duty service 

requirement for VA benefits.’’) 

(2) Veterans affected. The veterans 

affected by this paragraph are: 

(i) Veteran of World War II, the 

Korean conflict, or the Vietnam era who 

served for less than 90 days; or 

(ii) Veterans who served less than 181 

days on active duty as defined in 

§§ 36.4301 and 36.4501, and whose 

dates of service were: 

(A) After July 25, 1947, and before 

June 27, 1950; 

(B) After January 31, 1955, and before 

to August 5, 1964; or 

(C) After May 7, 1975. 

(Authority: 38 U.S.C. 3702, 3707) 

(b) Veterans’ educational assistance. 

(1) A determination is required as to 

whether a veteran was discharged or 

released from active duty service 

because of a service-connected 

disability, or whether the official service 

department records show that the 

veteran had at time of separation from 

service a service-connected disability 

which in medical judgment would have 

warranted discharge for disability, 

whenever any of the following 

circumstances exist: 

(i) The veteran applies for benefits 

under 38 U.S.C. chapter 32, the 

minimum active duty service 

requirements of 38 U.S.C. 5303A apply 

to him or her, and the veteran would be 

eligible for such benefits only if: 

(A) He or she was discharged or 

released from active duty for a disability 

incurred or aggravated in the line of 

duty; or 

(B) He or she has a disability that VA 

has determined to be compensable 

under 38 U.S.C. chapter 11; or 

(ii) The veteran applies for benefits 

under 38 U.S.C. chapter 30 and: 

(A) The evidence of record does not 

clearly show either that the veteran was 

discharged or released from active duty 

for disability or that the veteran’s 

discharge or release from active duty 

was unrelated to disability, and 

(B) The veteran is eligible for basic 

educational assistance except for the 

minimum length of active duty service 

requirements of § 21.7042(a) or 

§ 21.7044(a) of this chapter. 


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(2) A determination is required as to 

whether a veteran was discharged or 

released from service in the Selected 

Reserve for a service-connected 

disability or for a medical condition 

which preexisted the veteran’s having 

become a member of the Selected 

Reserve and which VA determines is 

not service connected when the veteran 

applies for benefits under 38 U.S.C. 

chapter 30 and: 

(i) The veteran would be eligible for 

basic educational assistance under that 

chapter only if he or she was discharged 

from the Selected Reserve for a serviceconnected disability or for a medical 

condition which preexisted the 

veteran’s having become a member of 

the Selected Reserve and which VA 

finds is not service connected, or 

(ii) The veteran is entitled to basic 

educational assistance and would be 

entitled to receive it at the rates stated 

in § 21.7136(a) or § 21.7137(a) of this 

chapter only if he or she was discharged 

from the Selected Reserve for a serviceconnected disability or for a medical 

condition which preexisted the 

veteran’s having become a member of 

the Selected Reserve and which VA 

finds is not service connected. 

(3) A determination is required as to 

whether a reservist has been unable to 

pursue a program of education due to a 

disability which has been incurred in or 

aggravated by service in the Selected 

Reserve when: 

(i) The reservist is otherwise entitled 

to educational assistance under 10 

U.S.C. chapter 1606, and 

(ii) He or she applies for an extension 

of his or her eligibility period. 

(4) The determinations required by 

paragraphs (b)(1) through (b)(3) of this 

section are subject to the presumptions 

of soundness under § 3.304(b) of this 

chapter and aggravation under § 3.306(a) 

and (c) of this chapter, based on service 

rendered after May 7, 1975. 

(Authority: 38 U.S.C. 3011(a)(1)(A)(ii), 

3012(b)(1), 3202(1)(A), 10 U.S.C. 16133(b)) 

§ 5.369 [Reserved] 

[FR Doc. E8–23825 Filed 10–16–08; 8:45 am] 

BILLING CODE 8320–01–P 


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