Last updated on March 14th, 2023 at 05:01 pm
Title 38 – Pensions, Bonuses, and Veterans’ Relief–Volume 2
CHAPTER I – DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)
PART 18 – NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF VETERANS AFFAIRS – EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Subpart A – General
§ 18.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 (hereafter referred to as the Act) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Veterans Affairs.
§ 18.2 Application of this part.
This part applies to any program for which Federal financial assistance is authorized under a law administered by the Department of Veterans Affairs, including the types of Federal financial assistance listed in appendix A to this subpart. It applies to money paid, property transferred, or other Federal financial assistance extended after the effective date of this part pursuant to an application approved prior to such effective date. This part does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, (b) money paid, property transferred, or other assistance extended before the effective date of this part, (c) any assistance to any individual who is the ultimate beneficiary, or (d) any employment practice, under any such program, of any employer, employment agency, or labor organization, except to the extent described in § 18.3. The fact that a type of Federal financial assistance is not listed in appendix A to this subpart shall not mean, if Title VI of the Act is otherwise applicable, that a program is not covered. Other types of Federal financial assistance under statutes now in force or hereinafter enacted may be added to appendix A to this subpart by notice published in the
§ 18.3 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to which this part applies may not, directly or through contractual or other arrangements, on grounds of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in any matter related to receipt of any service, financial aid, or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining whether is satisfied any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program.
(vi) Deny a person an opportunity to participate in the program through the provision of services or otherwise or afford an opportunity to do so which is different from that afforded others under the program.
(vii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies on the grounds of race, color or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color or national origin.
(c) Medical emergencies. Notwithstanding the foregoing provisions of this section, a recipient of Federal financial assistance shall not be deemed to have failed to comply with paragraph (a) of this section if immediate provision of a service or other benefit to an individual is necessary to prevent his or her death or serious impairment of his or her health, and such service or other benefit cannot be provided except by or through a medical institution which refuses or fails to comply with paragraph (a) of this section.
(d) Employment practices. (1) Whenever a primary objective of the Federal financial assistance to a program to which part 18 applies, is to provide employment, a recipient of such assistance may not (directly or through contractual or other arrangements) subject any individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff, or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities). The requirements applicable to construction employment under any such program shall be those specified in or pursuant to part III of Executive Order 11246 (3 CFR Chapter IV) or any Executive order which supersedes it.
(2) In regard to Federal financial assistance which does not have providing employment as a primary objective, the provisions of paragraph (d)(1) of this section apply to the employment practices of the recipient if discrimination on the ground of race, color, or national origin in such employment practices tends, on the grounds of race, color, or national origin, to exclude persons from participation in, to deny them the benefits of or to subject them to discrimination under the program receiving Federal financial assistance. In any such case, the provisions of paragraph (d)(1) of this section shall apply to the extent necessary to assure equality of opportunity to and nondiscriminatory treatment of beneficiaries.
§ 18.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance to which this part applies, except an application to which paragraph (b) of this section applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. Every award of Federal financial assistance shall require the submission of such an assurance. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which the recipient retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible agency official shall specify the form of the foregoing assurances and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) Transfers of surplus property are subject to regulations issued by the Administrator of General Services (41 CFR subpart 101-6.2).
(b) Continuing Federal financial assistance. Every application by a State or a State agency for continuing Federal financial assistance to which this part applies (including the types of Federal financial assistance listed in appendix A to this subpart) shall as a condition to its approval and the extension of any Federal financial assistance pursuant to the application (1) contain or be accompanied by a statement that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this part, and (2) provide or be accompanied by provision for such methods of administration for the program as are found by the responsible agency official to give reasonable assurance that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this part. In any case in which the recipient is claiming financial assistance pursuant to arrangements entered into prior to the effective date of this part, the assurances provided by this paragraph shall be included in the first application or claim for assistance on or after the effective date of this part.
(c) Elementary and secondary schools. The requirements of paragraph (a) or (b) of this section with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (1) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or (2) submits a plan for the desegregation of such school or school system which the responsible agency official determines is adequate to accomplish the purposes of the Act and this part, at the earliest practicable time, and provides reasonable assurance that it will carry out such plan; in any case of continuing Federal financial assistance the responsible agency official may reserve the right to redetermine, after such period as may be specified by the official, the adequacy of the plan to accomplish the purposes of the Act and this part. In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.
(d) Extent of application to institution or facility. In the case where any assurances are required from an academic, a medical care, or any other institution or facility, insofar as the assurances relate to the institution’s practices with respect to the admission, care, or other treatment of persons by the institution or with respect to the opportunity of persons to participate in the receiving or providing of services, treatment, or benefits, such assurances shall be applicable to the entire institution or facility.
§ 18.6 Compliance information.
(a) Cooperation and assistance. Each responsible agency official shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and submit to the responsible agency official or designee, timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible agency official or designee may determine to be necessary to enable the official to ascertain whether the recipient has complied or is complying with this part. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part. In general, recipients should have available for the agency racial and ethnic data showing the extent to which members of minority groups are beneficiaries of federally assisted programs.
(c) Access to sources of information. Each recipient shall permit access by the responsible agency official or designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible agency official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
§ 18.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official or designee shall from time to time review the practices of recipients to determine whether they are complying with this part.
(b) Complaints. Any person or any specific class of individuals who believe they have been subjected to discrimination prohibited by this part may themselves, or by a representative, file with the responsible agency official or designee a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination unless the time for filing is extended by the responsible agency offical or designee.
(c) Investigations. The responsible agency official or designee will initiate a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the responsible agency official or designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 18.8.
(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the responsible agency official or designee will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
§ 18.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.
(b) Noncompliance with § 18.4. If an applicant fails or refuses to furnish an assurance required under § 18.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The Department of Veterans Affairs shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that the Department of Veterans Affairs shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until (1) the responsible agency official has advised the applicant or recipient of failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, (3) the action has been approved by the Secretary pursuant to § 18.10(e), and (4) the expiration of 30 days after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance with Title VI of the Act by any other means authorized by law shall be taken by the Department of Veterans Affairs until (1) the responsible agency official has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days, additional efforts shall be made to persuade the recipient or other person to comply with this part and to take such corrective action as may be appropriate.
§ 18.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 18.8(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible agency official that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this paragraph or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 18.8(c) of this part and consent to the making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices of the Department of Veterans Affairs in Washington, D.C., at a time fixed by the responsible agency official unless the official determines that the convenience of the applicant or recipient or of the Department of Veterans Affairs requires that another place be selected. Hearings shall be held before the responsible agency official or, at the official’s discretion, before an administrative law judge appointed in accordance with section 3105 of Title 5, U.S.C., or detailed under section 3344 of Title 5, U.S.C.
(c) Right to counsel. In all proceedings under this section, the applicant or recipient and the Department of Veterans Affairs shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing decision and any administrative review thereof shall be conducted in conformity with the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act) and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department of Veterans Affairs and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more Federal statutes; authorities, or other means by which Federal financial assistance is extended and to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under Title VI of the Act, the Secretary may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this part. Final decisions in such cases, insofar as this part is concerned, shall be made in accordance with § 18.10.
§ 18.10 Decisions and notices.
(a) Procedure on decisions by an administrative law judge. If the hearing is held by an administrative law judge such administrative law judge shall either make an initial decision, if so authorized, or certify the entire record including recommended findings and proposed decision to the responsible agency official for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient. Where the initial decision is made by the administrative law judge the applicant or recipient may within 30 days of the mailing of such notice of initial decision file with the responsible agency official exceptions to the initial decision with reasons therefor. In the absence of exceptions, the responsible agency official may within 45 days after the initial decision serve on the applicant or recipient a notice that the decision will be reviewed. Upon the filing of such exceptions or of such notice of review the responsible agency official shall review the initial decision and issue a decision thereon including the reasons therefor. In the absence of either exceptions or a notice of review the initial decision shall constitute the final decision of the responsible agency official.
(b) Decisions on record or review by the responsible agency official. Whenever a record is certified to the responsible agency official for decision or the official reviews the decision of an administrative law judge pursuant to paragraph (a) of this section, or whenever the responsible agency official conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with the official briefs or other written statements of its contentions, and a written copy of the final decision of the responsible agency official shall be sent to the applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 18.9(a) a decision shall be made by the responsible agency official on the record and a written copy of such decision shall be sent to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of an administrative law judge or responsible agency official shall set forth a ruling on each finding, conclusion, or exception presented, and shall identify the requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an administrative law judge which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under this part of the Act, shall promptly be transmitted to the Secretary personally, who may approve such decision, may vacate it, or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and satisfies the responsible agency official that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this section and provides reasonable assurance that it will fully comply with this part.
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible agency official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible agency official determines that those requirements have been satisfied, the official shall restore such eligibility.
(3) If the responsible agency official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible agency official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
§ 18.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
§ 18.12 Effect on other regulations, forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like directions issued before the effective date of this part by any officer of the Department of Veterans Affairs which impose requirements designed to prohibit any discrimination against individuals on the grounds of race, color or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, shall be deemed to supersede any of the following (including future amendments thereof):
(1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114 (3 CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and regulations issued thereunder, or
(2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and regulations issued thereunder, or any other orders, regulations or instructions, insofar as such orders, regulations, or instructions prohibit discrimination on the grounds of race, color or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible agency officials shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this part as applied to programs to which this part applies and for which he is responsible.
(c) Supervision and coordination. The Secretary may from time to time assign to officials of the Department of Veterans Affairs or to officials of other departments or agencies of the Government with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this part (other than responsibility for final decision as provided in § 18.10) including the achievement of effective coordination and maximum uniformity within the Department of Veterans Affairs and within the executive branch of the Government in the application of Title VI and this part to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another department or agency acting pursuant to an assignment of responsibility under this paragraph shall have the same effect as though such action has been taken by the responsible official of this Agency.
§ 18.13 Definitions.
As used in this part:
(a) The term agency means the Department of Veterans Affairs, and includes each of its operating agencies and other organization units.
(b) The term Secretary means the Secretary of Veterans Affairs.
(c) The term responsible agency official with respect to any program receiving Federal financial assistance means the Secretary or other official of the Department of Veterans Affairs or an official of another department or agency to the extent the Secretary has delegated authority to such official.
(d) The term United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term State means any one of the foregoing.
(e) The term Federal financial assistance includes (1) grants of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(f) The terms program or activity and program mean all of the operations of any entity described in paragraphs (f)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section.
(g) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.
(h) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in the United States, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assignee, or transferee thereof, but such term does not include any ultimate beneficiary.
(i) The term applicant means a person who submits an application, request, or plan required to be approved by the Secretary, or by a recipient, as a condition to eligibility for Federal financial assistance, and application means such an application, request, or plan.
Appendix A to Subpart A of Part 18 – Statutory Provisions to Which This Subpart Applies
1. Payments to State homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home, and hospital care (38 U.S.C. 8131-8137).
3. Space and office facilities for representatives of recognized national organizations (38 U.S.C. 5902(a)(2)).
4. All-volunteer force educational assistance, Veteran Readiness and Employment, post-Vietnam era veterans’ educational assistance, survivors’ and dependents’ educational assistance, and administration of educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36, respectively).
5. Sharing of medical facilities, equipment, and information (38 U.S.C. 8151-8157).
6. Approval of educational institutions (38 U.S.C. 104).
7. Space and office facilities for representatives of State employment services (38 U.S.C. 7725(1)).
8. Medical care for survivors and dependents of certain veterans (38 U.S.C. 1713).
9. Transfers for nursing home care; adult day health care (38 U.S.C. 1720).
10. Treatment and rehabilitation for alcohol or drug dependence or abuse disabilities (38 U.S.C. 1720A).
11. Aid to States for establishment, expansion, and improvement of veterans cemeteries (38 U.S.C. 2408).
12. Assistance in establishing new medical schools; grants to affiliated medical schools; assistance to health manpower training institutions (38 U.S.C. Chapter 82).
13. Department of Veterans Affairs health professional scholarship program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452).
Appendix B to Subpart A of Part 18 – Illustrative Applications
The following examples, without being exhaustive, will illustrate the application of the nondiscrimination provisions to certain grants of the Department of Veterans Affairs. (In all cases the discrimination prohibited is discrimination on the grounds of race, color, or national origin prohibited by title VI of the Act and this part, as a condition of the receipt of Federal financial assistance.)
(a) In grants which support the provision of health or welfare services for veterans in State homes, discrimination in the selection or eligibility of individuals to receive the services, and segregation or other discriminatory practices in the manner of providing them, are prohibited. This prohibition extends to all facilities and services provided by the State as grantee under the program or by a political subdivision of the State. It extends also to services purchased or otherwise obtained by the grantee (or political subdivision) from hospitals, nursing homes, schools, and similar institutions for beneficiaries of the program, and to the facilities in which such services are provided, subject, however, to the provisions of § 18.3(c).
(b) In grants to assist in the construction of facilities for the provision of health or welfare services assurances will be required that services will be provided without discrimination, to the same extent that discrimination would be prohibited as a condition of Federal operating grants for the support of such services. Thus, as a condition of grants for the construction of a State home for furnishing nursing home care, assurances will be required that there will be no discrimination in the admission or treatment of patients. In the case of such grants the assurance will apply to patients, to interns, residents, student nurses, and other trainees, and to the privilege of physicians, dentists, and other professionally qualified persons to practice in the nursing home, and will apply to the entire facility for which, or for a part of which, the grant is made, and to facilities operated in connection therewith.
(c) Upon transfers of real or personal surplus property for health or educational uses, discrimination is prohibited to the same extent as in the case of grants for the construction of facilities or the provision of equipment for like purposes.
(d) A recipient may not take action that is calculated to bring about indirectly what this part forbids it to accomplish directly. Thus a State, in selecting or approving projects or sites for the construction of a nursing home which will receive Federal financial assistance, may not base its selections or approvals on criteria which have the effect of defeating or of substantially impairing accomplishment of the objectives of the Federal assistance program with respect to individuals of a particular race, color, or national origin.
Subparts B-C [Reserved]
Subpart D – Nondiscrimination on the Basis of Handicap
General Provisions
§ 18.401 Purpose.
The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, which is designed to eliminate discrimination on the basis of handicap in any program or activity receiving Federal financial assistance.
§ 18.402 Application.
This part applies to each recipient of Federal financial assistance from the Department of Veterans Affairs and to each program or activity that receives such assistance.
§ 18.403 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, and Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-602, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended by the Education for all Handicapped Children Act of 1975, Pub. L. 94-142, 20 U.S.C. 1401 et seq.
(d) Agency means the Department of Veterans Affairs.
(e) Secretary means the Secretary of Veterans Affairs.
(f) Recipient means any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient but excluding the ultimate beneficiary of the assistance.
(g) Applicant for assistance means one who submits an application, request, or plan required to be approved by an Agency official or by a recipient as a condition to eligibility for Federal financial assistance.
(h) Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the Agency provides or otherwise makes available assistance in the form of:
(1) Funds, including funds extended to any entity for payment to or on behalf of students admitted to that entity, extended directly to those students for payment to that entity, or extended directly to those students contingent upon their participation in education or training of that entity;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of property, including;
(i) Transfers or leases of such property for less than fair market value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government.
(i) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property.
(j) Handicapped person. (1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal; special sense organs including speech organs; respiratory; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(C) The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
(iii) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means:
(A) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a recipient as constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment;
(C) Has none of the impairments defined in paragraph (j)(2)(i) of this section, but is treated by a recipient as having such an impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question;
(2) With respect to public elementary, secondary, or adult educational services, a handicapped person:
(i) Of an age during which nonhandicapped persons are provided such services;
(ii) Of any age during which it is mandatory under State laws to provide such services to handicapped persons; or
(iii) To whom a State is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and
(3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity; and
(4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.
(l) Handicap means any condition or characteristic that renders a person a handicapped person as defined in paragraph (j) of this section.
(m) Program or activity means all of the operations of any entity described in paragraphs (m)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity that is established by two or more of the entities described in paragraph (m)(1), (2), or (3) of this section.
§ 18.404 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing an aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service that is equal to that afforded others;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient’s program or activity;
(vi) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.
(2) Aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must give handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.
(3) Despite the existence of separate or different aid, benefits, or services provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in aid, benefits, or services that are not separate or different.
(4) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration that:
(i) Have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap,
(ii) Have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons, or
(iii) Perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.
(5) In determining the site or location of a facility, an applicant for assistance or a recipient may not make selections that:
(i) Have the effect of excluding handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity that receives Federal financial assistance, or
(ii) Have the purpose or effect of defeating or substantially impairing the accomplishment of the objective of the program or activity with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided under a program or activity receiving Federal financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented, or otherwise acquired, in whole or in part, with Federal financial assistance.
(c) Aid, benefits, or services limited by Federal law. The exclusion of nonhandicapped persons or the exclusion of a specific class of handicapped persons from aid, benefits, or services limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) Special communication. Recipients shall take appropriate action to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired vision and hearing.
§ 18.405 Assurances required.
(a) Assurances. An applicant for Federal financial assistance to which this part applies shall submit an assurance on a form specified by the Secretary, that the program or activity will be operated in compliance with this part.
(b) Duration of obligation. (1) When Federal financial assistance is extended in the form of real property or structures on the property, the assurance will obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for the purpose for which Federal financial assistance is extended or for another purpose involving the provisions of similar services or benefits.
(2) Where Federal financial assistance is extended to provide personal property, the assurance will obligate the recipient for the period during which it retains ownership or possession of the property.
(3) In all other cases the assurance will obligate the recipient for the period during which Federal financial assistance is extended.
(c) Extent of application to institution or facility. An assurance shall apply to the entire institution or facility.
(d) Covenants. (1) Where Federal financial assistance is provided in the form of real property or interest in the property from the Agency, the instrument effecting or recording this transfer shall contain a covenant running with the land to assure nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provisions of similar services or benefits.
(2) Where no transfer of property is involved but property is purchased or improved with Federal financial assistance, the recipient shall agree to include the covenant described in paragraph (b)(2) of this section in the instrument effecting or recording any subsequent transfer of property.
(3) Where Federal financial assistance is provided in the form of real property or interest in the property from the Agency, the covenant shall also include a condition coupled with a right to be reserved by the Agency to revert title to the property if there is a breach of the covenant. If a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on the property for the purpose for which the property was transferred, the Secretary may, upon request of the transferee and if necessary to accomplish such financing and upon such conditions as considered appropriate, agree to forbear the exercise of the right to revert title for as long as the lien of the mortgage or other encumbrance remains effective.
(e) Other methods of enforcement. (1) Recipients are required to keep such records as the responsible VA official deems necessary for complete and accurate compliance reports. VA can specify intervals for reporting and prescribe the form and content of information required to ascertain whether the recipient has complied or is complying with the law.
(2) Periodic compliance reviews of training establishments will be conducted by VA compliance officers. During these reviews recipients are required to permit access by VA compliance officers during normal business hours to such of their books, records, accounts, facilities and other sources of information including interviews with personnel and trainees as may be pertinent to ascertain compliance with the law.
(3) From study of documentation, results of interviews, and observation of activities during tours of facilities, compliance officers will evaluate recipients’ compliance status.
§ 18.406 Remedial action, voluntary action and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has discriminated against qualified persons on the basis of handicap in violation of section 504 or this part, the recipient shall take such remedial action as the Secretary considers necessary to overcome the effects of the discrimination.
(2) Where a recipient is found to have discriminated against qualified persons on the basis of handicap in violation of section 504 or this part and where another recipient exercises control over the recipient that has discriminated, the Secretary, where appropriate, may require either or both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of discrimination in violation of section 504 or this part, require a recipient to take remedial action with respect to:
(i) Handicapped persons who are no longer participants in the recipient’s program or activity but who were participants in the program or activity when such discrimination occurred;
(ii) Handicapped persons who would have been participants in the program or activity had the discrimination not occurred; or
(iii) Handicapped persons presently in the program or activity, but not receiving full benefits or equal and integrated treatment within the program or activity.
(b) Voluntary action. A recipient may take steps, in addition to any action that is required by this part, to overcome the effects of conditions that resulted in limited participation in the recipient’s program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within one year of the effective date of this part:
(i) Evaluate with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices and the effects of the policies and practices that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, any policies and practices that do not meet the requirements of this part; and
(iii) Take, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, appropriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to these policies and practices.
(2) A recipient that employs fifteen or more persons shall, for at least three years following completion of the evaluation required under paragraph (c)(1) of this section, maintain on file, make available for public inspection, and provide to the Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified; and
(iii) A description of any modifications made and of any remedial steps taken.
(3) Recipients who become such more than one year after the effective date of these regulations shall complete these self-evaluation requirements within one year after becoming recipients of Federal financial assistance.
§ 18.407 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. A recipient that employs fifteen or more persons shall designate at least one person to coordinate its efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs fifteen or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part. Such procedures need not be established with respect to complaints from applicants for employment or from applicants for admission to postsecondary educational institutions.
§ 18.408 Notice.
(a) A recipient that employs fifteen or more persons shall take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees, including those with impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of handicap in violation of section 504 and this part. The notification shall state, where appropriate, that the recipient does not discriminate in admission or access to, or treatment, or employment in, its programs or activities. The notification shall also include an identification of the responsible employee designated under § 18.407. A recipient shall make the initial notification required by this paragraph within 90 days of the effective date of this part. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, placement of notices in recipient’s publication, and distribution of memorandums or other written communications.
(b) If a recipient publishes or uses recruitment materials or publications containing general information that it makes available to participants, beneficiaries, applicants, or employees, it shall include in those materials or publications a statement of the policy described in paragraph (a) of this section. A recipient may meet the requirement of this section either by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.
§ 18.409 Administrative requirements for certain recipients.
The Secretary may require any recipient with fewer than fifteen employees, or any class of such recipients, to comply with §§ 18.407 and 18.408 in whole or in part, when the Secretary finds a violation of this part or finds that such compliance will not significantly impair the ability of the recipient or class of recipients to provide benefits or services.
§ 18.410 Effect of State or local law or other requirements and effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or alleviated by the existence of any State law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services or to practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for handicapped persons than for nonhandicapped persons.
Employment Practices
§ 18.411 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity to which this part applies.
(2) A recipient shall make all decisions concerning employment under any program or activity to which this part applies in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of handicap.
(3) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination in employment. The relationships referred to in this section include relationships with employment and referral agencies, with organizations providing or administering fringe benefits to employees of the recipient, and with organizations providing training and apprenticeships.
(b) Specific activities. Nondiscrimination in employment applies to:
(1) Recruitment, advertising, and the processing of applications for employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
(3) Rates of pay or other forms of compensation and changes in compensation;
(4) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
(7) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including those that are social or recreational; and
(9) Any other term, condition, or privilege of employment.
(c) Collective bargaining agreements. A recipient’s obligation to comply with this subpart is not affected by any inconsistent term of any collective bargaining agreement to which it is a party.
§ 18.412 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known physical or mental limitations of a handicapped applicant or employee if such accommodation would enable that person to perform the essential functions of the job unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters and other similar actions.
(c) In determining under paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient’s program or activity, factors to be considered include:
(1) The overall size of the recipient’s program or activity with respect to number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient’s operation, including the composition and structure of the recipient’s work force; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.
§ 18.413 Employment criteria.
(a) A recipient may not use any employment test or other selection criterion that screens out or tends to screen out handicapped persons or any class of handicapped persons unless:
(1) The test score or other selection criterion, as used by the recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out or tend to screen out as many handicapped persons are not shown by the Secretary to be available.
(b) A recipient shall select and administer tests concerning employment to best ensure that when administered to an applicant or employee who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant’s or employee’s job skills, aptitude, or whatever other factor the test purports to measure, rather than reflect the applicant’s or employee’s impaired sensory, manual, or speaking skills (except when those skills are the factors that the test purports to measure).
§ 18.414 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped person or as to the nature or severity of a handicap. A recipient may, however, make preemployment inquiry into the applicant’s ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the effects of past discrimination pursuant to § 18.406(a), when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity pursuant to § 18.406(b), or when a recipient is taking affirmative action pursuant to section 503 of the Act, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped, provided that:
(1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and
(2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee’s entrance on duty, provided that:
(1) All entering employees are subjected to such an examination regardless of handicap, and (2) the results of such an examination are used only in accordance with the requirements of this part.
(d) Information obtained in accordance with this section as to the medical condition or history of the applicant shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions on the work or duties of handicapped persons and regarding necessary accommodations;
(2) First aid and safety personnel may be informed, where appropriate, if the condition might require emergency treatment;
(3) Government officials investigating compliance with the Act shall be provided relevant information upon request.
Accessibility
§ 18.421 Discrimination prohibited.
No qualified handicapped person shall, because a recipient’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity to which this part applies.
§ 18.422 Existing facilities.
(a) Accessibility. A recipient shall operate each program or activity to which this part applies so that when each part is viewed in its entirety it is readily accessible to handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.
(b) Methods. A recipient may comply with the requirement of paragraph (a) of this section through such measures as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aids to beneficiaries, home visits, delivery of health, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with § 18.423 or any other methods that make its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in making its programs or activities readily accessible to handicapped persons. In choosing among available methods for complying with paragraph (a) of this section, a recipient shall give priority to methods that serve handicapped persons in the most integrated setting appropriate.
(c) Small health, welfare or other social service providers, and recipients that operate other than educational programs or activities. If a recipient with fewer than fifteen employees finds after consultation with a handicapped person seeking its services that there is no method of complying with paragraph (a) of this section other than making a significant alteration in its existing facilities, the recipient may, as an alternative, refer the qualified handicapped person to other providers whose services are accessible. Where referrals are necessary, transportation costs shall not exceed costs to and from recipients’ programs or activities.
(d) Time period. A recipient shall comply with paragraph (a) of this section within 60 days of the effective date of this part except that when structural changes in facilities are necessary, these changes shall be made as soon as practicable, but not later than three years after the effective date of this part.
(e) Transition plan. If structural changes to facilities are necessary to meet the requirements of paragraph (a) of this section, a recipient shall develop a transition plan within six months of the effective date of this part setting forth the steps necessary to complete such change. The plan shall be developed with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons. A copy of the transition plan shall be available for public inspection. The plan shall, at a minimum:
(1) Identify physical obstacles in the recipient’s facilities that limit the accessibility of its program or activity to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve full accessibility under paragraph (a) of this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information concerning the existence and location of services, activities, and facilities that are accessible to and usable by handicapped persons.
§ 18.423 New construction.
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed so that the facility or part of the facility is readily accessible to and usable by handicapped persons, if the construction was commenced after the effective date of this part.
(b) Alteration. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient after the effective date of this part in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered so that the altered portion of the facility is readily accessible to and usable by handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1) Effective as of January 18, 1991, design, construction, or alteration of buildings in conformance with sections 3-8 of the Uniform Federal Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) shall be deemed to comply with the requirements of this section with respect to those buildings. Departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member.
Elementary, Secondary, and Adult Education
§ 18.431 Application.
Sections 18.431 through 18.439 apply to elementary, secondary, and adult education programs or activities that receive Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive Federal financial assistance for the operation of such programs or activities.
§ 18.432 Location and notification.
A recipient that operates a public elementary or secondary educational program shall annually:
(a) Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and
(b) Take appropriate steps to notify handicapped persons their parents or guardians of the recipients’s duty under §§ 18.431 through 18.439.
§ 18.433 Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.
(b) Appropriate education. (1) The provision of an appropriate education is the provision of regular or special education and related aids and services that:
(i) Are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met; and
(ii) Are based upon adherence to procedures that satisfy the requirements of §§ 18.434, 18.435, and 18.436.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a qualified handicapped person or refer that person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of §§ 18.431 through 18.439. The recipients remain responsible for ensuring that the requirements of §§ 18.431 through 18.439 are met with respect to any qualified handicapped person so placed or referred.
(c) Free education. (1) The provision of a free education is the provision of educational and related services without cost to the handicapped person, parents or guardian, except for those fees that are imposed on nonhandicapped persons or their parents or guardian. It may consist either of the provision of free services or, if a recipient places a handicapped person or refers that person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of §§ 18.431 through 18.439, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of this subpart. Nothing in this section shall be construed to relieve an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.
(2) If a recipient places a handicapped person or refers that person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person, parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient.
(3) If placement in a public or private residential program is necessary to provide free appropriate public education to a handicapped person because of his or her handicap, the program, including non-medical care and room and board, shall be provided at no cost to the person, parents or guardian.
(4) If a recipient has made available, in conformance with this section and § 18.434, a free appropriate public education to a handicapped person and the person’s parents or guardian chooses to place the person in a private school, the recipient is not required to pay for the person’s education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or regarding the question of financial responsibility are subject to the due process procedures of § 18.436.
(d) Compliance. A recipient may not exclude any qualified handicapped person from a public elementary or secondary education after the effective date of this part. A recipient that is not, on the effective date of this part, in full compliance with the requirements of paragraphs (a) through (c) of this section shall meet those requirements at the earliest practicable time, but not later than October 1, 1981.
§ 18.434 Education setting.
(a) Academic setting. A recipient shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. In deciding whether to place a person in a setting other than the regular educational environment, a recipient shall consider the proximity of the alternate setting to the person’s home.
(b) Nonacademic settings. In providing or arranging for the provision of nonacademic and extracurricular services and activities, a recipient shall ensure that handicapped persons participate with nonhandicapped persons in those activities and services to the maximum extent appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient in compliance with paragraph (a) of this section operates a facility that is identifiable as being for handicapped persons, the recipient shall ensure that the facility and the services and activities provided in that facility are comparable to the other facilities, services, and activities of the recipient.
§ 18.435 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation of any qualified person who, because of handicap, needs or is believed to need special education or related services before taking any action concerning the initial placement of the person in regular or program special education and any subsequent change in placement.
(b) Evaluation procedures. Elementary, secondary, and adult education programs or activities that receive Federal financial assistance shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered to best ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflect the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure.)
(c) Placement procedures. In interpreting evaluation data and in making placement decisions, a recipient shall:
(1) Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior;
(2) Establish procedures to ensure that information obtained from all sources is documented and carefully considered;
(3) Ensure that the placement decision is made by a group of persons, including persons knowledgeable about the student, the meaning of the evaluation data and the placement options; and
(4) Ensure that the placement decision is made in accordance with § 18.434.
(d) Reevaluation. A recipient to which this section applies shall establish procedures, in accordance with paragraph (b) of this section, for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.
§ 18.436 Procedural safeguards.
(a) A recipient that operates a public elementary or secondary education program shall implement a system of procedural safeguards with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services. The system shall include:
(1) Notice;
(2) An opportunity for the parents or guardian of the person to examine relevant records;
(3) An impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel; and
(4) Review procedure.
(b) Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.
§ 18.437 Nonacademic services.
(a) General. (1) Elementary, secondary, and adult education programs that receive Federal financial assistance shall provide nonacademic and extracurricular services and activities in a manner which gives handicapped students an equal opportunity for participation in these services and activities.
(2) Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipient, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment.
(b) Counseling services. Elementary, secondary, and adult education programs that receive Federal financial assistance and that provide personal, academic, or vocational counseling, guidance, or placement services to their students shall provide these services without discrimination on the basis of handicap and shall ensure that qualified handicapped students are not counseled toward more restrictive career objectives than are nonhandicapped students with similar interests and abilities.
(c) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, an elementary, secondary, or adult education program or activity that receives Federal financial assistance may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors interscholastic, club, or intramural activities shall provide to qualified handicapped students an equal opportunity for participation.
(2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different from those offered to nonhandicapped students only if separation or differentiation is consistent with the requirements of § 18.434 and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.
§ 18.438 Adult education.
A recipient that provides adult education may not, on the basis of handicap, exclude qualified handicapped persons. The recipient shall take into account the needs of these persons in determining the aid, benefits, or services to be provided.
§ 18.439 Private education.
(a) A recipient that provides private elementary or secondary education may not on the basis of handicap, exclude a qualified handicapped person if the person can, with minor adjustments, be provided an appropriate education, as defined in § 18.433(b)(1), within that recipient’s program or activity.
(b) A recipient may not charge more for providing an appropriate education to handicapped persons than to nonhandicapped persons except to the extent that any additional charge is justified by a substantial increase in cost to the recipient.
(c) A recipient to which this section applies that provides special education shall do so in accordance with §§ 18.435 and 18.436. Each recipient to which this section applies is subject to §§ 18.434, 18.437, and 18.438.
Postsecondary Education
§ 18.441 Application.
Sections 18.441 through 18.447 apply to postsecondary education programs or activities that receive Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive or benefit from Federal financial assistance for the operation of such programs or activities.
§ 18.442 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of handicap, be denied admission or be subjected to discrimination in admission or recruitment by a recipient.
(b) Admission. In administering its admission policies, a recipient;
(1) May not apply limitations on the number or proportion of handicapped persons who may be admitted;
(2) May not use any test or criterion for admission that has a disproportionate, adverse effect on handicapped persons or any class of handicapped persons unless:
(i) The test or criterion, as used by the recipient, has been validated as a predictor of success in the education program or activity in question; and
(ii) Alternate tests or criteria that have a less disproportionate, adverse effect are not shown by the Secretary to be available;
(3) Shall assure itself that:
(i) Admissions tests are selected and administered to best ensure that, when a test is administered to an applicant who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflect the applicant’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure);
(ii) Admissions tests that are designed for persons with impaired sensory, manual, or speaking skills are offered as often and in as timely a manner as are other admissions tests; and
(iii) Admissions tests are administered in facilities that, on the whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not make preadmission inquiries as to whether an applicant for admission is a handicapped person. After admission, the recipient may inquire on a confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking remedial action to correct the effects of past discrimination under § 18.406(a) or when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity under § 18.406(b), the recipient may invite applicants for admission to indicate whether and to what extent they are handicapped.
(1) The recipient shall state clearly on any written questionnaire used for this purpose or make clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary action efforts; and
(2) The recipient shall state clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this section, a recipient may base prediction equations on first year grades, but shall conduct periodic validity studies against the criterion of overall success in the education program or activity in question to monitor the general validity of the test scores.
§ 18.443 General treatment of students.
(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other aid, benefits, or services operated by a recipient to which this subpart applies.
(b) A recipient that considers participation by students in education programs or activities not operated wholly by the recipient as part of, or equivalent to, an education program or activity operated by the recipient shall assure itself that the other education program or activity, as a whole, provides an equal opportunity for the participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activity.
(d) A recipient shall operate its program or activity in the most integrated setting appropriate.
§ 18.444 Academic adjustments.
(a) Academic requirements. A recipient shall make necessary modifications to its academic requirements to ensure that these requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted. Academic requirements that the recipient can demonstrate are essential to the instruction being pursued by the student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section.
(b) Other rules. A recipient may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or guide dogs in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient’s education program or activity.
(c) Course examinations. In its course examinations or other procedures for evaluating students’ academic achievement, a recipient shall provide methods for evaluating the achievement of students who have a handicap that impairs sensory, manual, or speaking skills that will best ensure that the results of the evaluation represent the students’ achievement in the course, rather than reflect the students’ impaired sensory, manual, or speaking skills (except where such skills are the factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient shall ensure that no qualified handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.
§ 18.445 Housing.
(a) Housing provided by a recipient. A recipient that provides housing to its nonhandicapped students shall provide comparable, convenient, and accessible housing to qualified handicapped students at the same cost as to others. At the end of the transition period provided for in § 18.422(e), this housing shall be available in sufficient quantity and variety so that the scope of handicapped students’ choice of living accommodations is, as a whole, comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency, organization, or person in making housing available to any of its students shall assure itself that such housing is, as a whole, made available in a manner that does not result in discrimination on the basis of handicap.
§ 18.446 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial assistance to qualified handicapped persons, a recipient may not:
(i) On the basis of handicap, provide less assistance than is provided to nonhandicapped persons, limit eligibility for assistance, or otherwise discriminate; or
(ii) Assist any entity or person that provides assistance to any of the recipient’s students in a manner that discriminates against qualified handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established under wills, trusts, bequests, or similar legal instruments that require awards to be made on the basis of factors that discriminate or have the effect of discriminating on the basis of handicap only if the overall effect of the award of scholarships, fellowships, and other forms of financial assistance is not discriminatory on the basis of handicap.
(b) Assistance in making available outside employment. A recipient that assists any agency, organization, or person in providing employment opportunities to any of its students shall assure itself that these employment opportunities, as a whole, are made available in a manner that would not violate §§ 18.411 through 18.414 if the opportunities were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs any of its students may not do so in a manner that violates §§ 18.411 through 18.414.
§ 18.447 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors intercollegiate, club or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different only if separation or differentiation is consistent with the requirements of § 18.443(d) and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.
(b) Counseling and placement services. A recipient that provides personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services without discrimination on the basis of handicap. The recipient shall ensure that qualified handicapped students are not counseled toward more restrictive career objectives than are nonhandicapped students with similar interests and abilities. This requirement does not preclude a recipient from providing factual information about licensing and certification requirements that may present obstacles to handicapped persons in their pursuit of particular careers.
(c) Social organizations. A recipient that provides significant assistance to fraternities, sororities, or similar organizations shall assure itself that the membership practices of these organizations do not permit discrimination otherwise prohibited by §§ 18.441 through 18.447.
Health and Social Services
§ 18.451 Application.
Subpart F applies to health, and other social service programs or activities that receive Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive Federal financial assistance for the operation of such programs or activities.
(a) General. In providing health, or other social services or benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Give a qualified handicapped person the opportunity to receive benefits or services that are not equal to those offered nonhandicapped persons.
(3) Provide a qualified handicapped person with benefits or services that are not as effective (as defined in § 18.404(b)(2)) as the benefits or services provided to others;
(4) Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified handicapped persons; or
(5) Provide different or separate benefits or services to handicapped persons except where necessary to provide qualified handicapped persons with benefits and services that are as effective as those provided to others.
(b) Notice. A recipient that provides notice concerning benefits or services or written material concerning waivers of rights of consent to treatment shall ensure that qualified handicapped persons, including those with impaired sensory or speaking skills, are not denied effective notice because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient hospital that provides health services or benefits shall establish a procedure for effective communication with persons with impaired hearing for the purpose of providing emergency care.
(d) Auxiliary aids. (1) A recipient that employs fifteen or more persons shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to give these persons an equal opportunity to benefit from the service in question.
(2) The Secretary may require recipients with fewer than fifteen employees to provide auxiliary aids where the provision of aids would not significantly impair the ability of the recipient to provide its benefits or services.
(3) Auxiliary aids may include brailled and taped material, interpreters, and aids for persons with impaired hearing or vision.
§ 18.453 Drug and alcohol addicts.
A recipient that operates a general hospital or outpatient facility may not discriminate, with regard to a drug or alcohol abuser or alcoholic who is suffering from a medical condition, in the admission of that person for treatment of the medical condition, or in the treatment of the medical condition because of the person’s drug or alcohol abuse or alcoholism.
§ 18.454 Education of institutionalized persons.
A recipient that operates or supervises a program or activity that provides aid, benefits, or services for persons who are institutionalized because of handicap and is responsible for providing training shall ensure that each qualified handicapped person, as defined in § 18.403(k)(2), in its program or activity that provides aid, benefits, or services is provided an appropriate education, as defined in § 18.433(b). Nothing in this section shall be interpreted as altering in any way the obligations of recipients under §§ 18.431 through 18.439.
Procedures
§ 18.461 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to this part. These procedures are found in §§ 18.6 through 18.11 and part 18b of this chapter.
Appendix A to Subpart D of Part 18 – Statutory Provisions to Which This Part Applies
Subpart E – Nondiscrimination on the Basis of Age
General
§ 18.501 Purpose.
The purpose of these regulations is to set out Department of Veterans Affairs (VA) policies and procedures under the Age Discrimination Act of 1975 and the governmentwide age discrimination regulations at 45 CFR part 90. The Act and the governmentwide regulations prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act and the governmentwide regulations permit federally assisted programs or activities, and recipients of Federal funds, to continue to use age distinctions and factors other than age which meet the requirements of the Act and its implementing regulations.
§ 18.502 Application.
(a) These regulations apply to any program or activity receiving Federal financial assistance provided by VA directly or through another recipient.
(b) These regulations do not apply to:
(1) An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in age-related terms.
(2) Any employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except any program or activity receiving Federal financial assistance for public service employment under the Job Training Partnership Act, 29 U.S.C. 1501, et seq.
§ 18.503 Definitions.
As used in these regulations:
(a) Act means the Age Discrimination Act of 1975, as amended (Title III of Pub. L. 94-135, 42 U.S.C. 6101-6107).
(b) Action means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard, or method of administration.
(c) Secretary means the Secretary of Veterans Affairs or designees.
(d) Age means how old a person is, or the number of elapsed years from the date of a person’s birth.
(e) Age discrimination means unlawful treatment based on age.
(f) Age distinction means any action using age or an age-related term.
(g) Age-related term means a word or words which necessarily imply a particular age or range of ages (for example, children, adult, older persons, but not student).
(h) Day means calendar day.
(i) Federal financial assistance means any grant, entitlement, loan, cooperative agreement, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which a Federal agency or department provides or otherwise makes available assistance in the form of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of property, including:
(i) Transfers or leases of property for less than fair market value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if the Federal share of its market value is not returned to the Federal Government.
(j) Program or activity means all of the operations of any entity described in paragraphs (j)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity that is established by two or more of the entities described in paragraph (j)(1), (2), or (3) of this section.
(k) Recipient means any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended, directly or through another recipient. Recipient includes any successor, assignee, or transferee, but excludes the ultimate beneficiary of the assistance.
(l) Subrecipient means any of the entities in the definition of recipient to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations.
(m) United States means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, the Canal Zone, the Trust Territories of the Pacific Islands, the Northern Marianas, and the territories and possessions of the United States.
Standards for Determining Age Discrimination
§ 18.511 Rules against age discrimination.
The rules in this section are limited by the exceptions contained in §§ 18.513 and 18.514 of these regulations.
(a) General rule. No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual licensing, or other arrangements, use age distinctions or take any other actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or subjecting them to discrimination under, a program or activity receiving Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance.
(c) The specific forms of age discrimination listed in paragraph (b) of this section do not necessarily constitute a complete list.
§ 18.512 Definitions of “normal operation” and “statutory objective.”
For the purpose of these regulations, the terms normal operation and statutory objective shall have the following meaning:
(a) Normal operation means the operation of a program or activity without significant changes that would impair its ability to meet its objectives.
(b) Statutory objective means any purpose of a program or activity expressly stated in any Federal statute, State statute, or local statute or ordinance adopted by an elected, general purpose legislative body.
§ 18.513 Exceptions to the rules against age discrimination; normal operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by § 18.511, if the action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other characteristics; and
(b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly on an individual basis.
§ 18.514 Exceptions to the rules against age discrimination; reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by § 18.511 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective.
§ 18.515 Burden of proof.
The burden of proving that an age distinction or other action falls within the exceptions outlined in §§ 18.513 and 18.514 is on the recipient of Federal financial assistance.
§ 18.516 Affirmative action by recipients.
Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in limited participation in the recipient’s program or activity on the basis of age.
Responsibilities of Department of Veterans Affairs Recipients
§ 18.531 General responsibilities.
Each VA recipient must ensure that its programs or activities are in compliance with the Act and these regulations.
§ 18.532 Notice of subrecipients.
Where a recipient passes on Federal financial assistance from VA to programs or activities of subrecipients, the recipient shall provide the subrecipients written notice of their obligations under the Act and these regulations with respect to such programs and activities.
§ 18.533 Assurance of compliance and recipient assessment of age distinctions.
(a) Each recipient of Federal financial assistance from VA shall sign a written assurance as specified by the Secretary that it will comply with the Act and these regulations.
(b) Recipient assessment of age distinctions. (1) As part of a compliance review under § 18.541 or complaint investigation under § 18.544, the Secretary may require a recipient employing the equivalent of 15 of more employees to complete a written self-evaluation, in a manner specified by the responsible agency official, of any age distinction imposed in its programs or activities receiving Federal financial assistance from VA to assess the recipient’s compliance with the Act.
(2) Whenever an assessment indicates a violation of the Act or these regulations, the recipient shall take corrective action.
§ 18.534 Information requirements.
Each recipient shall:
(a) Make available upon request to VA information necessary to determine whether the recipient is complying with the Act and these regulations.
(b) Permit reasonable access by VA to the books, records, accounts, and other recipient facilities and sources of information to the extent necessary to determine whether the recipient is in compliance with the Act and these regulations.
Investigation, Conciliation, and Enforcement Procedures
§ 18.541 Compliance reviews.
(a) VA may conduct compliance reviews and preaward reviews of recipients or use other similar procedures that will permit it to investigate and correct violations of the Act and these regulations. VA may conduct these reviews even in the absence of a complaint against a recipient. The review may be as comprehensive as necessary to determine whether a violation of these regulations has occurred.
(b) If a compliance review or preaward review indicates a violation of the Act or these regulations, VA will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, VA may institute enforcement proceedings as described in § 18.546.
§ 18.542 Complaints.
(a) Any person, individually or as a member of a class or on behalf of others, may file a complaint with VA alleging discrimination prohibited by the Act or these regulations based on an action occurring on or after July 1, 1979. A complainant shall file a complaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. However, for good cause shown, VA may extend this time limit. Complaints may be submitted to the Director, Office of Equal Opportunity (06B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(b) VA will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:
(1) Acknowledging receipt and acceptance of a complaint in writing.
(2) Accepting as a sufficient complaint, any written statement which identifies the parties involved and the date the complainant first had knowledge of the alleged violation, describes generally the action or practice complained of, and is signed by the complainant.
(3) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.
(4) Widely disseminating information regarding the obligations of recipients under the Act and these regulations.
(5) Notifying the complainant and the recipient of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the complaint procedure.
(6) Notifying the complainant and the recipient (or their representatives) of their right to contact VA for information and assistance regarding the complaint resolution process.
(c) VA will refer a complaint of discrimination based on age to another appropriate Federal agency when the complaint is outside the jurisdiction of VA. VA will notify the complainant in writing that the complaint has been referred; explain the reason why the complaint is not within the jurisdiction of VA; and give the complainant the name, agency, and address of the official to whom the complaint was referred.
§ 18.543 Mediation.
(a) Referral of complaints for mediation. VA will refer to the Federal Mediation and Conciliation Service all complaints that:
(1) Fall within the jurisdiction of the Act and these regulations; and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the mediation process to the extent necessary to reach an agreement or make an informed judgment that an agreement is not possible. However, the recipient and the complainant need not meet with the mediator at the same time.
(c) If the complainant and the recipient reach an agreement, the mediator shall prepare a written statement of the agreement and have the complainant and the recipient sign it. The mediator shall send a copy of the agreement to VA. VA will take no further action on the complaint unless the complainant or the recipient fails to comply with the agreement.
(d) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjunctive proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the mediation agency.
(e) VA will use the mediation process for a maximum of 60 days after the responsible agency official receives a complaint.
(f) Mediation ends if:
(1) 60 days elapse from the time the responsible agency official receives the complaint; or
(2) Prior to the end of that 60-day period, an agreement is reached; or
(3) Prior to the end of that 60-day period, the mediator determines that an agreement cannot be reached.
(g) The mediator shall return unresolved complaints to VA.
§ 18.544 Investigation.
(a) Informal investigation. (1) VA will investigate complaints that are reopened because of a violation of a mediation agreement.
(2) As part of the initial investigation VA will use informal fact finding methods, including joint or separate discussions with the complainant and recipient to establish the facts and, if possible, settle the complaint on terms that are mutually agreeable to the parties. VA may seek the assistance of any involved State agency.
(3) VA will put any agreement in writing and have it signed by the parties and an authorized official from the VA.
(4) The settlement shall not affect the operation of any other enforcement effort of VA, including compliance reviews and investigation of other complaints which may involve the recipient.
(5) A settlement need not contain an admission of discrimination or other wrongdoing by the recipient nor should it be considered a finding of discrimination against the recipient.
(b) Formal investigation. If VA cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of these regulations, VA will attempt to obtain voluntary compliance. If voluntary compliance cannot be achieved, VA may institute enforcement proceedings as described in § 18.546.
§ 18.545 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation against any person who:
(a) Attempts to assert a right protected by the Act or these regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other part of VA’s investigation, conciliation, and enforcement process.
§ 18.546 Compliance procedure.
(a) VA may enforce the Act and these regulations through:
(1) Termination of Federal financial assistance from VA with respect to a recipient’s program or activity that has violated the Act or these regulations. The determination of the recipient’s violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. Therefore, cases which are settled in mediation, or prior to a hearing, will not involve termination of a recipient’s Federal financial assistance from VA.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations of the recipient created by the Act or these regulations.
(ii) Use of any requirement of or referral to any Federal, State, or local government agency that will have the effect of correcting a violation of the Act or these regulations.
(b) VA will limit any termination under paragraph (a)(1) of this section to the particular program or activity or part of such program or activity of a recipient that VA finds to be in violation of the Act or these regulations. VA will not base any part of a termination on a finding with respect to any program or activity of the recipient which does not receive Federal financial assistance from VA.
(c) VA will take no action under paragraph (a) of this section until:
(1) The Secretary has advised the recipient of its failure to comply with the Act and these regulations and has determined that voluntary compliance cannot be obtained.
(2) Thirty days have elapsed after the Secretary has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the program or activity involved. The Secretary will file a report whenever any action is taken under paragraph (a) of this section.
(d) VA also may defer granting new Federal financial assistance from VA to a recipient when a hearing under paragraph (a)(1) of this section is initiated.
(1) New Federal financial assistance from VA includes all assistance for which VA requires an application or approval, including renewal or continuation of existing activities, or authorization of new activities during the deferral period. New Federal financial assistance from VA does not include increases in funding resulting solely from a change in the formula or method of computing awards, nor does it include assistance approved prior to the beginning of a hearing under paragraph (a)(1) of this section.
(2) VA will not begin a deferral until the recipient has received a notice of an opportunity for a hearing under paragraph (a)(1) of this section. VA will not continue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient and the Secretary. VA will not continue a deferral for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipient.
§ 18.547 Hearings, decisions, post-termination proceedings.
Certain VA procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to VA enforcement of these regulations. They are found at §§ 18.9 through 18.11 and part 18b of this title.
§ 18.548 Remedial action by recipient.
Where VA finds that a recipient has discriminated on the basis of age, the recipient shall take any remedial action that VA may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, VA may require both recipients to take remedial action.
§ 18.549 Alternate funds disbursal procedure.
(a) When VA withholds funds from a recipient under these regulations, the Secretary may disburse the withheld funds directly to an alternate recipient: Any public or non-profit private organization or agency, or State or political subdivision of the State.
(b) The Secretary will require any alternate recipient to demonstrate;
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance.
§ 18.550 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint and VA has made no finding with regard to the complaint; or
(2) VA issues any finding in favor of the recipient.
(b) If VA fails to make a finding within 180 days or issues a finding in favor of the recipient, VA will:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right to bring a civil action for injunctive relief; and
(3) Inform the complainant that:
(i) The complainant may bring a civil action only in a United States district court for the district in which the recipient is found or transacts business;
(ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney’s fees, but the complainant must demand these costs in the complaint;
(iii) Before commencing the action, the complainant shall give 30 days notice by registered mail to the Secretary, the Attorney General of the United States, and the recipient;
(iv) The notice must state: The alleged violation of the Act; the relief requested; the court in which the complainant is bringing the action; and, whether or not attorney’s fees are demanded in the event the complainant prevails; and
(v) The complainant may not bring action if the same alleged violations of the Act by the same recipient is the subject of a pending action in any court of the United States.
Appendix A to Subpart E of Part 18 – Statutory Provisions to Which This Subpart Applies
1. Approval of educational institutions (38 U.S.C. 104).
2. Space and office facilities for representatives of State employment services (38 U.S.C. 7725(1)).
3. Medical care for survivors and dependents of certain veterans (38 U.S.C. 1713).
4. Transfers for nursing home care; adult day health care (38 U.S.C. 1720).
5. Treatment and rehabilitation for alcohol or drug dependence or abuse disabilities (38 U.S.C. 1720A).
6. Payments to State Homes (38 U.S.C. 1741-1743).
7. Aid to States for establishment, expansion, and improvement of veterans’ cemeteries (38 U.S.C. 2408).
8. Veteran Readiness and Employment; Post-Vietnam Era Veterans’ Educational Assistance; Survivors’ and Dependents’ Educational Assistance; and Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34, 35 and 36 respectively).
9. Space and office facilities for representatives of recognized national organizations (38 U.S.C. 5902(a)(2)).
10. Department of Veterans Affairs Health Professional Scholarship Program (38 U.S.C. 7601-7655).
11. State Home Facilities for Furnishing Domiciliary, Nursing Home and Hospital Care (38 U.S.C. 8131-8137).
12. Sharing of Medical Facilities, Equipment and Information (38 U.S.C. 8151-8157).
13. Assistance in Establishing New State Medical Schools; Grants to Affiliated Medical Schools; Assistance to Health Manpower Training Institutions (38 U.S.C. Chapter 82).
14. Emergency Veterans’ Job Training (Pub. L. 98-77, 97 Stat. 443-452).
Appendix B to Subpart E of Part 18 – List of Age Distinctions Contained in Statutes and Regulations Governing Federal Financial Assistance of the Department of Veterans Affairs
Section 90.31(f) of the governmentwide regulations (45 CFR part 90) requires each Federal agency to publish an appendix to its final regulations containing a list of age distinctions in Federal statutes and regulations affecting financial assistance administered by the agency. This appendix is VA’s list of age distinctions contained in Federal statutes and VA regulations which:
(1) Provide benefits or assistance to persons based upon age; or
(2) Establish criteria for participation in age-related terms; or
(3) Describe intended beneficiaries or target groups in age-related terms.
Appendix B deals only with VA’s programs of financial assistance covered by the Age Discrimination Act. It does not list age distinctions used by VA in its direct assistance programs, such as veterans’ compensation. Also, this appendix contains only age distinctions in Federal statutes and VA regulations in effect on January 1, 1985.
This appendix has two sections: A list of age distinctions in Federal statutes, and a list of age distinctions in VA regulations. The first column contains the name of the program; the second column has the statute name and U.S. Code citation for statutes, or the regulation name and Code of Federal Regulations citation for regulations; the third column contains the section number of the statute or regulation and the description of the age distinction; and the fourth column cites the Catalog of Federal Domestic Assistance number for the program(s) affected where it is available.
Age Distinctions in Statutes Governing Federal Financial Assistance Programs of the Department of Veterans Affairs
| Program | Statute | Section and Age Distinction | CFDA |
|---|---|---|---|
| Veterans’ Benefits | Section 101 of the Veterans’ Benefits Act of 1957, as amended; 38 U.S.C. 101 | Section 101(4)(A) defines the term “child” for the purposes of Title 38, U.S.C. (except for chapter 19 and section 8502(b) of Title 38) as “a person who is unmarried and – (i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution; and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or was a member at the time of the veteran’s death, or an illegitimate child but, as to the alleged father, only if acknowledged in writing signed by him, or if he has been judicially ordered to contribute to the child’s support or has been, before his death, judicially decreed to be the father of such child, or if he is otherwise shown by evidence statisfactory to the Secretary to be the father or such child. . . .” | |
| Section 101(4)(B) provides that for the purposes of section 101(4)(A) of Title 38, in the case of an adoption under the laws of any jurisdiction other than a State, a person residing outside any of the States shall not be considered a legally adopted child of a veteran during the lifetime of that veteran, unless, among other things, such a person was less than eighteen years of age at the time of the adoption | |||
| Approval of Educational Institutions | Section 104 of the Veterans’ Benefits Act of 1957, as amended, 38 U.S.C. 104 | Section 104(a) authorizes the Secretary to approve or disapprove an educational institution for the purpose of determining whether or not benefits are payable under Title 38, U.S.C. (except chapter 15 of title 38) for a child over the age of eighteen years and under the age of twenty-three years who is attending a school, college, academy, seminary, technical institution, university, or other educational institution | |
| Section 104(b) provides that the Secretary may not approve an educational institution under section 104 of Title 38, unless the institution has agreed to report the termination of attendance of any child. If the educational institution fails to report any such termination promptly, the approval of the Secretary shall be withdrawn | |||
| Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPA) | Section 103(b) of the Veterans Health Care Expansion Act of 1973, as amended; 38 U.S.C. 1713 | Section 1713(a) authorizes the Secretary to provide medical care to: “(1) The spouse or child of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, (2) the surviving spouse or child of a veteran who (A) died as a result of a service-connected disability, or (B) at the time of death had a total disability permanent in nature, resulting from a service-connected disability, and (3) the surviving spouse or child of a person who died in the active military, naval, or air service in the line of duty and not due to such person’s own misconduct, who are not otherwise eligible for medical care under Chapter 55 of Title 10, U.S.C. (CHAMPUS) | 64.009 |
| Section 1713(c) provides that for the purposes of this program, “a child between the ages of eighteen and twenty-three (1) who is eligible for benefits under subsection (a) of this section, (2) who is pursuing a full-time course of instruction at an educational institution, approved under Chapter 36 of this title, and (3) who while pursuing such course of instruction, incurs a disabling illness or injury . . . which results in such child’s inability to continue or resume such child’s chosen program of education . . . shall remain eligible for benefits under this section until the end of the six-month period beginning on the date the disability is removed, the end of the two-year period beginning on the date of the onset of the disability, or the twenty-third birthday of the child, whichever occurs first” | |||
| VA Hospital, Domiciliary or Nursing Home Care | Section 510 of the Veterans’ Benefits Act of 1957, amended; 38 U.S.C. 1710 | Section 1710 authorizes the Secretary, within the limits of VA facilities, to furnish hospital care or nursing home care. Among the persons eligible for such care are veterans with a nonservice-connected disability if they are sixty-five years of age or older | 64.009 64.010 64.015 64.016 |
| Post-Vietnam Era Veterans’ Educational Assistance | Post Vietnam Era Veterans’ Educational Act of 1977, as amended; U.S.C. Chapter 32 | Section 3201 states that the purpose of Chapter 32 of Title 38, U.S.C. is: “(1) To provide educational assistance to those men and women who enter the Armed Forces after December 31, 1976, (2) to assist young men and women in obtaining an education they might not otherwise be able to afford, and (3) to promote and assist the all volunteer military program of the United States by attracting qualified men and women to serve in the Armed Forces” | 64.120 |
| Veterans’ Educational Assistance | Section 2 of the Veterans’ Readjustment Benefits Act of 1966, amended; 38 U.S.C. Chapter 34 | Section 3451 states that the education program created by this chapter is for the purpose of: “ . . . (1) Enhancing and making more attractive service in the Armed Forces of the United States, (2) extending the benefits of higher education to qualified and deserving young persons who might not otherwise be able to afford such an education, (3) providing vocational readjustment and restoring lost educational opportunities to those service men and women whose careers have been interrupted or impeded by reason of active duty after January 31, 1955, and (4) aiding such persons in attaining the vocational and educational status which they might normally have aspired to and obtained had they not served their country” | 64.111 |
| Section 3492(b) authorizes the Secretary to pay to an eligible veteran receiving tutorial assistance pursuant to section 3492(a) of this chapter, the cost of such tutorial assistance, subject to certain limits, upon certification by the educational institution that “ . . . (2) the tutor chosen to perform such assistance is qualified and is not the eligible veteran’s parent, spouse, child (whether or not married or over eighteen years of age), brother, or sister; and (3) the charges for such assistance do not exceed the customary charges for such tutorial assistance” | |||
| Survivors’ and Dependents’ Educational Assistance | War Orphans’ Educational Assistance Act of 1956, as amended; 38 U.S.C. Chapter 35 | Section 3500 states that “the educational program established by this chapter is for the purpose of providing opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease or injury incurred or aggravated in the Armed Forces after the beginning of the Spanish-American War, and for the purpose of aiding such children in attaining the educational status which they might have aspired to and attained but for the disability or death of such parent. The Congress further declares that the educational program extended to the surviving spouses of veterans who died of service-connected total disabilities and to spouses of veterans with a service-connected total disability permanent in nature is for the purpose of assisting them in preparing to support themselves and their families at a standard of living level which the veteran, but for the veteran’s death or service disability, could have expected to provide for the veteran’s family” | 64.117 |
| Section 3501 defines the term “eligible person” as: “(A) a child of a person who – (i) died of a service-connected disability, (ii) has a total disability permanent in nature resulting from a service-connected disability, or who died while a disability so evaluated was in existence or (iii) at the time of application for benefits under this chapter is a member of the Armed Forces serving on active duty listed, pursuant to section 556 of Title 37 [U.S.C.] and regulations issued thereunder, by the Secretary concerned in one or more of the following categories . . . for a total of ninety days: (A) missing in action, (B) captured in line of duty by a hostile force, or (C) forcibly detained or interned in line of duty by a foreign government or power, . . .” Subparagraph (a)(2) of this section provides that the term “child” includes individuals who are married and individuals who are above the age of twenty-three years | |||
| Section 3512 establishes periods of eligibility. Provides that the educational program to which an eligible child within the meaning of this chapter is entitled to may be afforded, “. . . during the period beginning on the person’s eighteenth birthday, or on the successful completion of the person’s secondary schooling, whichever first occurs, and ending on the person’s twenty-sixth birthday, except that – (1) if the person is above the age of compulsory school attendance under applicable State law, and the Secretary determines that the person’s best interests will be served thereby, such period may begin before the person’s eighteenth birthday; (2) if the person has a mental or physical handicap, and . . . the person’s best interests will be served by pursuing a program of special restorative training or a specialized course of vocational training approved under section 3536 of this title, such period may begin before the person’s fourteenth birthday; (3) if the Secretary finds that the parent from whom eligibility is derived has a service-connected total disability permanent in nature, or if the death of the parent from whom eligibility is derived occurs, after the eligible person’s eighteenth birthday but before the person’s twenty-sixth birthday, then (unless paragraph (4) applies) such period shall end 8 years after, whichever date last occurs: (A) the date on which the Secretary first finds that the parent from whom eligibility is derived has a service-connected total disability permanent in nature, or (B) the date of death of the parent from whom eligibility is derived; (4) if the person serves on duty with the Armed Forces as an eligible person after the person’s eighteenth birthday but before the person’s twenty-sixth birthday, then such period shall end 8 years after the person’s first discharge or release from such duty with the Armed Forces . . . in no event shall such period be extended beyond the person’s thirty-first birthday by reason of this paragraph; and (5)(A) if the person becomes eligible by reason of the provisions of section 3501(a)(1)(A)(ii) of this title after the person’s eighteenth birthday but before the person’s twenty-sixth birthday, then (unless clause (4) of this section applies) such period shall end eight years after the date on which the person becomes eligible by reason of such provisions, but in no event shall such period be extended beyond the person’s thirty-first birthday by reason of this clause. . . .” | |||
| Section 3513 provides that the parent or guardian of a person or the eligible person (if such person has attained legal majority) for whom the educational assistance is sought under Chapter 35 shall submit an application to the Secretary, which shall be in such form and contain such information as the Secretary shall prescribe | |||
| Section 3562 provides that the commencement of a program of education or special restorative training under Chapter 35 shall be a bar, “(1) to subsequent payments of compensation, dependency and indemnity compensation, or pension based on a death of a parent to an eligible person over the age of eighteen by reason of pursuing a course in an educational institution, or (2) to increased rates, or additional amounts of compensation, dependency and indemnity compensation, or pension because of such a person whether eligibility is based upon the death or upon the total permanent disability of the parent” | |||
| Section 3563 states that “The Secretary shall notify the parent or guardian of each eligible person as defined in section 3501(a)(1)(A) of this title of the educational assistance available to such person under Chapter 35. Such notification shall be provided not later than the month in which such eligible person attains such person’s thirteenth birthday or as soon thereafter as feasible” |
Age Distinctions in Regulations Governing Federal Financial Assistance Programs of the Department of Veterans Affairs
| Program | Regulation | Section and Age Distinction | CFDA |
|---|---|---|---|
| Veterans’ Benefits | Adjudication (38 CFR part 3) | Section 3.57 defines the term “child” of a veteran as, “. . . an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. (2) For the purposes of determining entitlement of benefits based on a child’s school attendance, the term “child” of the veteran also includes the following unmarried persons: (i) A person who was adopted by the veteran between the ages of 18 or 23 years. (ii) A person who became a stepchild of a veteran between the ages of 18 or 23 years and who is a member of the veteran’s household at the time of the veteran’s death. . . .” | |
| Survivors’ and Dependents’ Educational Assistance | Adjudication (38 CFR part 3) | Section 3.807(d) sets forth basic eligibility criteria for the program of educational assistance under 38 U.S.C. Chapter 35. Defines the term “child” as the son or daughter of a veteran who meets the requirements of 38 CFR 3.57, except as to age or marital status | 64.117 |
| Survivors’ and Dependent’s Educational Assistant Under 38 U.S.C. Chapter 35 (38 CFR part 21, subpart C) | Section 21.3021 describes beneficiaries of the program. Paragraph (a) defines the term “eligible person” as, “(1) A child of a: (i) Veteran who died of a service-connected disability. . . .” Paragraph (b) defines the term “child” as a son or daughter of a veteran as defined in 38 CFR 3.807(d) | ||
| Section 21.3023 states that: “(a) Child; age 18. A child who is eligible for educational assistance and who is also eligible for pension, compensation dependency and indemnity compensation based on school attendance must elect whether he or she will receive educational assistance or pension, compensation or dependency and indemnity compensation. (1) An election of education assistance either before or after the age of 18 years is a bar to subsequent payment or increased rates or additional amounts of pension, compensation or dependency and indemnity compensation on account of a child based on school attendance on or after the age of 18 years. . . . (2) Payment of pension, compensation or dependency and indemnity compensation to or on account of a child after his or her 18th birthday does not bar subsequent payments of educational assistance. . . . (b) Child; under 18 or helpless. Educational assistance allowance or special restorative training allowance may generally be paid concurrently with pension, compensation or dependency and indemnity compensation for a child under the age of 18 years or for a helpless child based on the service of one or more parents. Where, however, entitlement is based on the death of more than one parent in the same parental line, concurrent payments in two or more cases may not be authorized if the death of one such parent occurred on or after June 9, 1960. In the latter cases, an election of educational assistance and pension, compensation or dependency and indemnity compensation in one case does not preclude a reelection of benefits before attaining age 18 or while helpless based on the service of another parent in the same parental line. . . .” | |||
| Section 21.3040 sets forth criteria for the commencement and termination of the program of education or special restorative training for an eligible child under 38 U.S.C. Chapter 35. Paragraph (a) of this section provides that a program of education or special restorative training may not be afforded prior to the eligible persons’ 18th birthday or the completion of secondary schooling, whichever is earlier, unless it is determined through counseling that the best interests of the eligible person will be served by entering training at an earlier date and the eligible person has passed: (1) Compulsory school attendance age under State law; or (2) his or her 14th birthday and due to physical or mental handicap may benefit by special restorative or specialized vocational training. Paragraph (c) of this section provides that no person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability, or on or before the date the veteran’s death occurred, or on or before the 91st day of listing by the Secretary concerned of the member of the Armed Forces or whose service eligibility is claimed as being is one of the missing categories identified in 38 CFR 21.3021(a) (1)(iii) and (3)(ii). Paragraph (d) provides that no person is eligible for educational assistance beyond his or her 31st birthday, except in certain exceptional cases | |||
| Section 21.3041 sets forth periods of eligibility for an eligible child. Paragraph (a) of this section provides the basic beginning date for the educational assistance as the person’s 18th birthday or successful completion of secondary schooling, whichever occurs first. Paragraph (b) authorizes certain exceptions to the basic beginning date, if: (1) A person has passed compulsory school attendance under applicable State law, or (2) has passed his or her 14th birthday and has a physical or mental handicap. Paragraph (c) provides the basic ending date as the person’s 26th birthday. Paragraphs (d) and (e) set forth criteria for modifying or extending the ending date | |||
| Administration of Educational Benefits; 38 U.S.C. Chapter 34, 35, and 36 (38 CFR part 21, subpart D) | Section 21.3300 provides that VA may prescribe special restorative training for the purpose of enabling an eligible child to pursue a program of education, special vocational program, or other appropriate goal, where needed to overcome or lessen the effects of a physical or mental disability | ||
| Section 21.4102(a) requires VA to provide counseling for the purpose set forth in 38 CFR 21.4100 to an eligible child when: (1) The eligible child may require specialized vocational or special restorative training, or (2) the eligible child has reached compulsory school attendance age under State law, but has neither reached his or her 18th birthday nor completed secondary schooling, or (3) if requested by the eligible child or his or her parent or guardian for the purpose of preparing an educational plan | |||
| Section 21.4139(b) provides that VA will make payment of educational assistance under 38 U.S.C. Chapter 35 to the eligible person if: (1) He or she has attained majority and has no known legal disability or (2) is in the eligible person’s best interests, and there is no reason not to designate the eligible person as payee. VA may pay minors under this provision | |||
| Section 21.4141 provides that payment of educational assistance allowance under 38 U.S.C. Chapter 35 will be subject to offsets of amounts of pension, compensation, or dependency and indemnity compensation paid over the same period on behalf of a child based on school attendance | |||
| VA Hospital, Domiciliary or Nursing Home Care | Eligiblity for hospital, domiciliary or nursing home care of persons discharged or released from active military, naval, or air service (38 CFR 17.47) | Section 17.47(e) provides that within the limits of VA facilities, hospital or nursing home care may be provided to any veteran with a nonservice-connected disability if such a veteran is 65 years of age or older | 64.009 64.010 64.015 64.016 |
| Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPA) | Medical Care for Survivors and Dependents of Certain Veterans (38 CFR 17.54) | Section 17.54 states that medical care may be provided for: “(1) The spouse or child of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, and (2) the surviving spouse or child of a veteran who – (a) died as a result of a service-connected disability, or (b) at the time of death had a total disability, permanent in nature resulting from a service-connected disability and – (3) the surviving spouse or child of a person who died in the active military, naval or air service . . . Who are not otherwise eligible for medical care as beneficiaries of the Armed Forces under the provisions of Chapter 55 of Title 10, United States Code (CHAMPUS) . . . and (4) An eligible child who is pursuing a full-time course of instruction approved under 38 U.S.C. Chapter 36, and who incurs a disabling illness or injury while pursuing such course; . . . shall remain eligible for medical care until: (a) The end of the 6-month period beginning on the date the disability is removed, or (b) the end of the 2-year period beginning on the date of the onset of the disability; or (c) the 23d birthday of the child, whichever occurs first. . . .” | 64.009 |
| Veterans’ Educational Assistance | Administration of Educational Benefits; 38 U.S.C. Chapters 34, 35, and 36 (38 CFR part 21, subpart D) | Section 21.4135(d) sets forth the following dates for the discontinuance of the educational assistance allowance provided for a dependent child, under Chapter 34 of Title 38: “. . . (1) Last day of the in calendar year in which marriage occurred unless discontinuance is required at an earlier date under other provisions. (2) Age 18. Day preceding 18th birthday. (3) School attendance. Last day of month in which 23rd birthday, whichever is earlier. (4) Helplessness ceased. Last day of month school attendance ceased or day preceding following 60 days after notice to payee that helplessness has ceased.” | |
| Section 21.4136 sets forth monthly rates for the payment of educational assistance allowance under 38 U.S.C. Chapter 34. Paragraph (f) defines the term “dependent” as a spouse, child or dependent parent who meets the definitions of relationship specified in 38 CFR 3.50, 3.57 and 3.59 |
PART 18a – DELEGATION OF RESPONSIBILITY IN CONNECTION WITH TITLE VI, CIVIL RIGHTS ACT OF 1964
§ 18a.1 Delegations of responsibility between the Secretary of Veterans Affairs and the Secretary, Department of Health and Human Services, and the Secretary, Department of Education.
(a) Authority has been delegated to the Secretary of Veterans Affairs by the Secretary, Department of Health and Human Services, and the Secretary, Department of Education to perform responsibilities of those Departments and of the responsible Departmental officials under Title VI of the Civil Rights Act of 1964 and the Departments’ regulations issued thereunder (45 CFR part 80 and 34 CFR part 100) with respect to: Proprietary (i.e., other than public or nonprofit) educational institutions, except if operated by a hospital; and post secondary, nonprofit, educational institutions other than colleges and universities, except if operated by a college or university, a hospital, or a unit of State or local government (i.e., those operating such institutions as an elementary or secondary school, an area vocational school, a school for the handicapped, etc.)
(1) The compliance responsibilities so delegated include:
(i) Soliciting, receiving, and determining the adequacy of assurances of compliance under 45 CFR 80.4 and 34 CFR 100.4;
(ii) All actions under 45 CFR 80.6 including mailing, receiving, and evaluating compliance reports under § 80.6(b) and 34 CFR 100.6(b); and
(iii) All other actions related to securing voluntary compliance, or related to investigations, compliance reviews, complaints, determinations of apparent failure to comply, and resolutions of matters by informal means.
(2) The Department of Health and Human Services and the Department of Education specifically reserve to themselves the responsibilities for the effectuation of compliance under 45 CFR 80.8, 80.9, 80.10 and 34 CFR 100.8, 100.9 and 100.10.
(b) Authority has been delegated to the Secretary, Department of Health and Human Services and the Secretary, Department of Education, to perform responsibilities of the Department of Veterans Affairs and of the responsible Department of Veterans Affairs official under Title VI of the Civil Rights Act of 1964 and the Department of Veterans Affairs regulations issued thereunder (part 18 of this chapter) with respect to institutions of higher learning, including post-high school institutions which offer nondegree courses for which credit is given and which would be accepted on transfer by a degree-granting institution toward a baccalaureate or higher degree; hospitals and other health facilities and elementary and secondary schools and school systems including, but not limited to, their activities in connection with providing or seeking approval to provide vocational rehabilitation to eligible persons under Chapter 31 of Title 38 U.S.C., or education or training to eligible persons under Chapters 34, 35, or 36 of Title 38 U.S.C.
(1) The compliance responsibilities so delegated include:
(i) Soliciting, receiving, and determining the adequacy of assurances of compliance under § 18.4 of this chapter;
(ii) Mailing, receiving, and evaluating compliance reports under § 18.6(b) of this chapter; and
(iii) All other actions related to securing voluntary compliance or related investigations, compliance reviews, complaints, determinations of apparent failure to comply and resolutions of matters by informal means.
(2) The Department of Veterans Affairs specifically reserves to itself responsibilities for effectuation of compliance under §§ 18.8, 18.9, and 18.10 of this chapter. Not included in the delegation to the Secretary, Department of Health and Human Services and the Secretary, Department of Education and specifically reserved to the Department of Veterans Affairs is the exercise of compliance responsibilities with respect to:
(i) Postsecondary schools which do not offer a program or courses leading, or creditable, towards the granting of at least a bachelor’s degree, or its equivalent;
(ii) Privately-owned and operated proprietary technical, vocational, and other private schools at the elementary or secondary level; and
(iii) Those institutions of higher learning and elementary and secondary schools and school systems which, as of January 3, 1969, have already been subjected to formal noncompliance proceedings by the Department of Health and Human Services or the Department of Education and have had their right to receive Federal financial assistance from that agency terminated for noncompliance with Title VI of the Civil Rights Act of 1964.
(c) Any institution of higher learning or a hospital or other health facility which is listed by the Department of Health and Human Services or the Department of Education as having filed an assurance of compliance will be accepted as having met the requirements of the law for the purpose of payment under 38 U.S.C. Chapters 31, 34, 35, or 36 and 38 U.S.C. sections 1741, 8131-8137 and 8155.
(d) If the Department of Health and Human Services or the Department of Education finds that a school, hospital or other health facility which has signed an assurance of compliance is apparently in noncompliance, action will be initiated by that Department to obtain compliance by voluntary means. If voluntary compliance is not achieved, the Department of Veterans Affairs will join in subsequent proceedings.
(e) An institution which is on the Department of Health and Human Services or the Department of Education list of noncomplying institutions will be considered to be in a status of compliance for Department of Veterans Affairs purposes if an assurance of compliance is filed with the Department of Veterans Affairs and actual compliance is confirmed. Certificates of eligibility may be issued and enrollments approved and other appropriate payments made until such time as the Department of Veterans Affairs has made an independent determination that the institution is not in compliance.
§ 18a.2 Delegation to the Under Secretary for Benefits.
The Under Secretary for Benefits is delegated responsibility for obtaining evidence of voluntary compliance for vocational rehabilitation, education, and special restorative training to implement Title VI, Civil Rights Act of 1964. Authority is delegated to the Under Secretary for Benefits and designee to take any necessary action as to programs of vocational rehabilitation, education, or special restorative training under 38 U.S.C. Chapters 31, 34, 35, and 36 for the purpose of securing evidence of voluntary compliance directly or through the agencies to whom the Secretary of Veterans Affairs has delegated responsibility for various schools or training establishments to implement part 18 of this chapter. The Under Secretary for Benefits also is delegated responsibility for obtaining evidence of voluntary compliance from recognized national organizations whose representatives are afforded space and office facilities in field facilities under jurisdiction of the Under Secretary for Benefits.
§ 18a.3 Delegation to the Chief Medical Director.
The Chief Medical Director is delegated responsibility for obtaining evidence of voluntary compliance implementing the provisions of Title VI, Civil Rights Act of 1964, in connection with payments to State homes, with State home facilities for furnishing nursing home care, and from recognized national organizations whose representatives are afforded space and office facilities in field facilities under jurisdiction of the Chief Medical Director.
§ 18a.4 Duties of the Director, Contract Compliance Service.
Upon referral by the Chief Medical Director or the Under Secretary for Benefits, the Director, Contract Compliance Service will:
(a) Investigate and process all complaints arising under Title VI of the Civil Rights Act of 1964;
(b) Conduct periodic audits, reviews and evaluations;
(c) Attempt to secure voluntary compliance by conciliatory or other informal means whenever investigation of a complaint, compliance review, failure to furnish assurance of compliance, or other source indicates noncompliance with Title VI; and
§ 18a.5 Delegation to the General Counsel.
The General Counsel is delegated the responsibility, upon receipt of information from the Under Secretary for Benefits, the Chief Medical Director, or the designee of either of them, that compliance cannot be secured by voluntary means, of forwarding to the recipient or other person the notice required by § 18.9(a) of this chapter, and also is delegated the responsibility of representing the agency in all proceedings resulting from such notice.
PART 18b – PRACTICE AND PROCEDURE UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 AND PART 18 OF THIS CHAPTER
General Rules
§ 18b.1 Scope of rules.
The rules of procedure in this part supplement §§ 18.9 and 18.10 of this chapter and govern the practice for hearings, decisions, and administrative review conducted by the Department of Veterans Affairs pursuant to Title VI of the Civil Rights Act of 1964 (section 602, 78 Stat. 252) and part 18 of this chapter.
The term reviewing authority means the Secretary of Veterans Affairs, or any person or persons acting pursuant to authority delegated by the Secretary to carry out responsibility under § 18.10 of this chapter. The term includes the Secretary with respect to action under § 18b.75.
§ 18b.9 Definitions.
The definitions contained in § 18.13 of this chapter apply to this part, unless the context otherwise requires.
§ 18b.10 Records to be public.
All pleadings, correspondence, exhibits, transcripts of testimony, exceptions, briefs, decisions, and other documents filed in the docket in any proceeding may be inspected and copied in the office of the Civil Rights hearing clerk. Inquiries may be made at the Department of Veterans Affairs Central Office, 810 Vermont Avenue NW., Washington, DC 20420.
§ 18b.11 Use of number.
As used in this part, words importing the singular number may extend and be applied to several persons or things, and vice versa.
§ 18b.12 Suspension of rules.
Upon notice to all parties, the reviewing authority or the presiding officer, with respect to matters pending before them, may modify or waive any rule upon determination that no party will be unduly prejudiced and the ends of justice will thereby be served.
Appearance and Practice
§ 18b.13 Appearance.
A party may appear in person or by counsel and participate fully in any proceeding. A State agency or a corporation may appear by any of its officers or by any employee it authorizes to appear on its behalf. Counsel must be members in good standing of the bar of a State, territory, or possession of the United States or of the District of Columbia or the Commonwealth of Puerto Rico.
§ 18b.14 Authority for representation.
Any individual acting in any proceeding may be required to show authority to act in such capacity.
§ 18b.15 Exclusion from hearing for misconduct.
Disrespectful, disorderly, or contumacious language or contemptuous conduct, refusal to comply with directions, or continued use of dilatory tactics by any person at any hearing before a presiding officer shall constitute grounds for immediate exclusion of such person from the hearing by the presiding officer.
Parties
§ 18b.16 Parties.
The term party shall include an applicant or recipient or other person to whom a notice of hearing or opportunity for hearing has been mailed naming that person as respondent. The Department shall also be deemed a party to all proceedings and shall be represented by the General Counsel.
§ 18b.17 Amici curiae.
(a) Any interested person or organization may file a petition to participate in a proceeding as an amicus curiae. Such petition shall be filed prior to the prehearing conference, or if none is held, before the commencement of the hearing, unless the petitioner shows good cause for filing the petition later. The presiding officer may grant the petition if the officer finds that the petitioner has a legitimate interest in the proceedings, that such participation will not unduly delay the outcome, and may contribute materially to the proper disposition thereof. An amicus curiae is not a party and may not introduce evidence at a hearing.
(b) An amicus curiae may submit a statement of position to the presiding officer prior to the beginning of a hearing, and shall serve a copy on each party. The amicus curiae may submit a brief on each occasion a decision is to be made or a prior decision is subject to review. The brief shall be filed and served on each party within the time limits applicable to the party whose position the amicus curiae deems to support; or if the amicus curiae does not deem to support the position of any party, within the longest time limit applicable to any party at that particular stage of the proceedings.
(c) When all parties have completed their initial examination of a witness, any amicus curiae may request the presiding officer to propound specific questions to the witness. The presiding officer, in the officer’s discretion, may grant any such request if the officer believes the proposed additional testimony may assist materially in elucidating factual matters at issue between the parties and will not expand the issues.
§ 18b.18 Complainants not parties.
A person submitting a complaint pursuant to § 18.7(b) of this chapter is not a party to the proceedings governed by this part, but may petition, after proceedings are initiated, to become an amicus curiae.
Documents
§ 18b.20 Form of documents to be filed.
Documents to be filed shall be dated, the original signed in ink, shall show the docket description and title of the proceeding, and shall show the title, if any, and address of the signatory. Copies need not be signed but the name of the person signing the original shall be reproduced. Documents shall be legible and shall not be more than 8
§ 18b.21 Signature of documents.
The signature of a party, authorized officer, employee, or attorney constitutes a certificate that one of them has read the document, that to the best of that person’s knowledge, information, and belief there is good ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may proceed as though the document had not been filed. Similar action may be taken if scandalous or indecent matter is inserted.
§ 18b.22 Filing and service.
All notices by a Department of Veterans Affairs official, and all written motions, requests, petitions, memoranda, pleadings, exceptions, briefs, decisions, and correspondence to a Department of Veterans Affairs official from a party, or vice versa, relating to a proceeding after its commencement shall be filed and served on all parties. Parties shall supply the original and two copies of documents submitted for filing. Filings shall be made with the Civil Rights hearing clerk at the address stated in the notice of hearing or notice of opportunity for hearing, during regular business hours. Regular business hours are every Monday through Friday (legal holidays in the District of Columbia excepted) from 8 a.m. to 4:30 p.m., eastern standard or daylight saving time, whichever is effective in the District of Columbia at the time. Originals only of exhibits and transcripts of testimony need be filed. For requirements of service on amici curiae, see § 18b.76.
§ 18b.23 Service; how made.
Service shall be made by personal delivery of one copy to each person to be served or by mailing by first-class mail, properly addressed with postage prepaid. When a party or amicus has appeared by attorney or other representative, service upon such attorney or representative, will be deemed service upon the party or amicus. Documents served by mail preferably should be mailed in sufficient time to reach the addressee by the date on which the original is due to be filed, and should be airmailed if the addressee is more than 300 miles distant.
§ 18b.24 Date of service.
The date of service shall be the day when the matter is deposited in the U.S. mail or is delivered in person, except that the date of service of the initial notice of hearing or opportunity for hearing shall be the date of its delivery, or of its attempted delivery if refused.
§ 18b.25 Certificate of service.
The original of every document filed and required to be served upon parties to a proceeding shall be endorsed with a certificate of service signed by the party making service or by the party’s attorney or representative, stating that such service has been made, the date of service, and the manner of service, whether by mail or personal delivery.
Time
§ 18b.26 Computation.
In computing any period of time under the rules in this part or in an order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed in the District of Columbia, in which event it includes the next following business day. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.
§ 18b.27 Extension of time or postponement.
Requests for extension of time should be served on all parties and should set forth the reasons for the application. Applications may be granted upon a showing of good cause by the applicant. From the designation of a presiding officer until the issuance of a decision such requests should be addressed to the presiding officer. Answers to such requests are permitted, if made promptly.
§ 18b.28 Reduction of time to file documents.
For good cause, the reviewing authority or the presiding officer, with respect to matters pending before them, may reduce any time limit prescribed by the rules in this part, except as provided by law or in part 18 of this chapter.
Proceedings Before Hearing
§ 18b.30 Notice of hearing or opportunity for hearing.
Proceedings are commenced by mailing a notice of hearing or opportunity for hearing to an affected applicant or recipient, pursuant to §§ 18.9 and 18a.5 of this chapter.
§ 18b.31 Answer to notice.
The respondent, applicant or recipient may file an answer to the notice within 20 days after service thereof. Answers shall admit or deny specifically and in detail each allegation of the notice, unless the respondent party is without knowledge, in which case the answer should so state, and the statement will be deemed a denial. Allegations of fact in the notice not denied or controverted by answer shall be deemed admitted. Matters alleged as affirmative defenses shall be separately stated and numbered. Failure of the respondent to file an answer within the 20-day period following service of the notice may be deemed an admission of all matters of fact recited in the notice.
§ 18b.32 Amendment of notice or answer.
The General Counsel may amend the notice of hearing or opportunity for hearing once as a matter of course before an answer thereto is served, and each respondent may amend the answer once as a matter of course not later than 10 days before the date fixed for hearing but in no event later than 20 days from the date of service of the original answer. Otherwise a notice or answer may be amended only by leave of the presiding officer. A respondent shall file the answer to an amended notice within the time remaining for filing the answer to the original notice or within 10 days after service of the amended notice, whichever period may be the longer, unless the presiding officer otherwise orders.
§ 18b.33 Request for hearing.
Within 20 days after service of a notice of opportunity for hearing which does not fix a date for hearing the respondent, either in the answer or in a separate document, may request a hearing. Failure of the respondent to request a hearing shall be deemed a waiver of the right to a hearing and to constitute consent to the making of a decision on the basis of such information as is available.
§ 18b.34 Consolidation.
The reviewing authority may provide for proceedings in the Department of Veterans Affairs to be joined or consolidated for hearing with proceedings in other Federal departments or agencies, by agreement with such other departments or agencies. All parties to any proceeding consolidated subsequent to service of the notice of hearing or opportunity for hearing shall be served with notice of such consolidation.
§ 18b.35 Motions.
Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged. If made before or after the hearing, these matters shall be in writing. If made at the hearing, they may be stated orally; but the presiding officer may require that they be reduced to writing and filed and served on all parties in the same manner as a formal motion. Motions, answers, and replies shall be addressed to the presiding officer, if the case is pending before the officer. A repetitious motion will not be entertained.
§ 18b.36 Responses to motions and petitions.
Within 8 days after a written motion or petition is served, or such other period as the reviewing authority or the presiding officer may fix, any party may file a response thereto. An immediate oral response may be made to an oral motion.
§ 18b.37 Disposition of motions and petitions.
The reviewing authority or the presiding officer may not sustain or grant a written motion or petition prior to expiration of the time for filing responses thereto, but may overrule or deny such motion or petition without awaiting response: Provided, however, That prehearing conferences, hearings and decisions need not be delayed pending disposition of motions or petitions. Oral motions and petitions may be ruled on immediately. Motions and petitions submitted to the reviewing authority or the presiding officer, respectively, and not disposed of in separate rulings or in their respective decisions will be deemed denied. Oral arguments shall not be held on written motions or petitions unless the presiding officer in the officer’s discretion expressly so orders.
Responsibilities and Duties of Presiding Officer
§ 18b.40 Who presides.
An administrative law judge assigned under 5 U.S.C. 3105 or 3344 (formerly section 11 of the Administrative Procedure Act) shall preside over the taking of evidence in any hearing to which these rules or procedure apply.
§ 18b.41 Designation of an administrative law judge.
The designation of the administrative law judge as presiding officer shall be in writing, and shall specify whether the administrative law judge is to make an initial decision or to certify the entire record including recommended findings and proposed decision to the reviewing authority, and may also fix the time and place of hearing. A copy of such order shall be served on all parties. After service of an order designating an administrative law judge to preside, and until such administrative law judge makes a decision, motions and petitions shall be submitted to the administrative law judge. In the case of the death, illness, disqualification or unavailability of the designated administrative law judge, another administrative law judge may be designated to take that person’s place.
§ 18b.42 Authority of presiding officer.
The presiding officer shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order. The presiding officer shall have all powers necessary to these ends, including (but not limited to) the power to:
(a) Arrange and issue notice of the date, time, and place of hearings, or, upon due notice to the parties, to change the date, time, and place of hearings previously set.
(b) Hold conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding.
(c) Require parties and amici curiae to state their position with respect to the various issues in the proceeding.
(d) Administer oaths and affirmations.
(e) Rule on motions, and other procedural items on matters pending before the presiding officer.
(f) Regulate the course of the hearing and conduct of counsel therein.
(g) Examine witnesses and direct witnesses to testify.
(h) Receive, rule on, exclude or limit evidence.
(i) Fix the time for filing motions, petitions, briefs, or other items in matters pending before the presiding officer.
(j) Issue initial or recommended decisions.
(k) Take any action authorized by the rules in this part, or in conformance with the provisions of 5 U.S.C. 551-559 (the Administrative Procedure Act).
Hearing Procedures
§ 18b.50 Statements of position and trial briefs.
The presiding officer may require parties and amici curiae to file written statements of position prior to the beginning of a hearing. The presiding officer may also require the parties to submit trial briefs.
§ 18b.51 Evidentiary purpose.
(a) The hearing is directed to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. Argument will not be received in evidence; rather it should be presented in statements, memoranda, or briefs, as determined by the presiding officer. Brief opening statements, which shall be limited to statement of the party’s position and what the party intends to prove, may be made at hearings.
(b) Hearings for the reception of evidence will be held only in cases where issues of fact must be resolved in order to determine whether the respondent has failed to comply with one or more applicable requirements of part 18 of this chapter. In any case where it appears from the respondent’s answer to the notice of hearing or opportunity for hearing, from failure timely to answer, or from admissions or stipulations in the record, that there are no matters of material fact in dispute, the reviewing authority or presiding officer may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for filing briefs under § 18b.70. Thereafter the proceedings shall go to conclusion in accordance with §§ 18b.70 through 18b.76. The presiding officer may allow an appeal from such order in accordance with § 18b.65.
§ 18b.52 Testimony.
Testimony shall be given orally under oath or affirmation by witnesses at the hearing; but the presiding officer, in the officer’s discretion, may require or permit that the direct testimony of any witness be prepared in writing and served on all parties in advance of the hearing. Such testimony may be adopted by the witness at the hearing, and filed as part of the record thereof. Unless authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. Except as provided in §§ 18b.54 and 18b.55, witnesses shall be available at the hearing for cross-examination.
§ 18b.53 Exhibits.
Proposed exhibits shall be exchanged at the prehearing conference, or otherwise prior to the hearing if the presiding officer so requires. Proposed exhibits not so exchanged may be denied admission as evidence. The authenticity of all proposed exhibits exchanged prior to hearing will be deemed admitted unless written objection thereto is filed prior to the hearing or unless good cause is shown at the hearing for failure to file such written objection.
§ 18b.54 Affidavits.
An affidavit is not inadmissible as such. Unless the presiding officer fixes other time periods affidavits shall be filed and served on the parties not later than 15 days prior to the hearing; and not less than 7 days prior to hearing a party may file and serve written objection to any affidavit on the ground that it is believed necessary to test the truth of assertions therein at hearing. In such event the assertions objected to will not be received in evidence unless the affiant is made available for cross-examination, or the presiding officer determines that cross-examination is not necessary for the full and true disclosure of facts referred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing.
§ 18b.55 Depositions.
Upon such terms as may be just, for the convenience of the parties or of the Department of Veterans Affairs, the presiding officer may authorize or direct the testimony of any witness to be taken by deposition.
§ 18b.56 Admissions as to facts and documents.
Not later than 15 days prior to the scheduled date of the hearing except for good cause shown or prior to such earlier date as the presiding officer may order, any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant documents described in and exhibited with the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the matters of which an admission is requested shall be deemed admitted, unless within a period designated in the request (not less than 10 days after service thereof, or within such further time as the presiding officer or the reviewing authority if no presiding officer has yet been designated may allow upon motion and notice) the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party cannot truthfully either admit or deny such matters. Copies of requests for admission and answers thereto shall be served on all parties. Any admission made by a party to such request is only for the purposes of the pending proceeding, or any proceeding or action instituted for the enforcement of any order entered therein, and shall not constitute an admission by the party for any other purpose or be used against the party in any other proceeding or action.
§ 18b.57 Evidence.
Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded.
§ 18b.58 Cross-examination.
A witness may be cross-examined on any matter material to the proceeding without regard to the scope of his direct examination.
§ 18b.59 Unsponsored written material.
Letters expressing views or urging action and other unsponsored written material regarding matters in issue in a hearing will be placed in the correspondence section of the docket of the proceeding. These data are not deemed part of the evidence or record in the hearing.
§ 18b.60 Objections.
Objections to evidence shall be timely and briefly state the ground relied upon.
§ 18b.61 Exceptions to rulings of presiding officer unnecessary.
Exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is sought, makes known the action which the party desires the presiding officer to take, or the party’s objection to an action taken, and the party’s grounds therefor.
§ 18b.62 Official notice.
Where official notice is taken or is to be taken of a material fact not appearing in the evidence of record, any party, on timely request, shall be afforded an opportunity to show the contrary.
§ 18b.63 Public document items.
Whenever there is offered (in whole or in part) a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations), or a similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice, as a public document item by specifying the document or relevant part thereof.
§ 18b.64 Offer of proof.
An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.
§ 18b.65 Appeals from ruling of presiding officer.
Rulings of the presiding officer may not be appealed to the reviewing authority prior to consideration of the entire proceeding except with the consent of the presiding officer and where the reviewing authority certifies on the record or in writing that the allowance of an interlocutory appeal is clearly necessary to prevent exceptional delay, expense, or prejudice to any party, or substantial detriment to the public interest. If an appeal is allowed, any party may file a brief with the reviewing authority within such period as the presiding officer directs. No oral argument will be heard unless the reviewing authority directs otherwise. At any time prior to submission of the proceeding to the reviewing authority for decision, the reviewing authority may direct the presiding officer to certify any question or the entire record to the reviewing authority for decision. Where the entire record is so certified, the presiding officer shall recommend a decision.
The Record
§ 18b.66 Official transcript.
The Department of Veterans Affairs will designate the official reporter for all hearings. The official transcripts of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith shall be filed with the Department of Veterans Affairs. Transcripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not to exceed the maximum rates fixed by the contract between the Department of Veterans Affairs and the reporter. Upon notice to all parties, the presiding officer may authorize corrections to the transcript which involve matters of substance.
§ 18b.67 Record for decision.
The transcript of testimony, exhibits, and all papers and requests filed in the proceedings, except the correspondence section of the docket, including rulings and any recommended or initial decision shall constitute the exclusive record for decision.
Posthearing Procedures; Decisions
§ 18b.70 Posthearing briefs; proposed findings and conclusions.
(a) The presiding officer shall fix the time for filing posthearing briefs, which may contain proposed findings of fact and conclusions of law, and, if permitted, reply briefs.
(b) Briefs should include a summary of the evidence relied upon together with references to exhibit numbers and pages of the transcript, with citations of authorities relied upon.
§ 18b.71 Decisions following hearing.
When the time for submission of posthearing briefs has expired, the presiding officer shall certify the entire record, including recommended findings and proposed decision, to the reviewing authority; or if so authorized shall make an initial decision. A copy of the recommended findings and proposed decision, or of the initial decision, shall be served upon all parties, and amici, if any.
§ 18b.72 Exceptions to initial or recommended decisions.
Within 20 days after the mailing of an initial or recommended decision, any party may file exceptions to the decision, stating reasons therefor, with the reviewing authority. Any other party may file a response thereto within 30 days after the mailing of the decision. Upon the filing of such exceptions, the reviewing authority shall review the decision and issue its own decision thereon.
§ 18b.73 Final decisions.
(a) Where the hearing is conducted by a hearing examiner who makes an initial decision, if no exceptions thereto are filed within the 20-day period specified in § 18b.72, such decision shall become the final decision of the Department of Veterans Affairs, and shall constitute “final agency action” within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedure Act), subject to the provisions of § 18b.75.
(b) Where the hearing is conducted by an administrative law judge who makes a recommended decision or upon the filing of exceptions to an administrative law judge’s initial decision, the reviewing authority shall review the recommended or initial decision and shall issue a decision thereon, which shall become the final decision of VA, and shall constitute “final agency action” within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedures Act), subject to the provisions of § 18b.75.
(c) All final decisions shall be promptly served on all parties, and amici, if any.
(a) If any party desires to argue a case orally on exceptions or replies to exceptions to an initial or recommended decision, the party shall make such request in writing. The reviewing authority may grant or deny such requests in his or her discretion. If granted, the reviewing authority will serve notice of oral argument on all parties. The notice will set forth the order of presentation, the amount of time allotted, and the time and place for argument. The names of persons who will argue should be filed with the agency hearing clerk not later than 7 days before the date set for oral argument.
(b) The purpose of oral argument is to emphasize and clarify the written argument in the briefs. Reading at length from the brief or other texts is not favored. Participants should confine their arguments to points of controlling importance and to points upon which exceptions have been filed. Consolidations of appearances at oral argument by parties taking the same side will permit the parties’ interests to be presented more effectively in the time allotted.
(c) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the Department hearing clerk at least 7 days before the argument.
§ 18b.75 Review by the Secretary.
Within 20 days after an initial decision becomes a final decision pursuant to § 18b.73(a), or within 20 days of the mailing of a final decision referred to in § 18b.73(b), as the case may be, a party may request the Secretary to review the final decision. The Secretary may grant or deny such request, in whole or in part, or serve notice of intent to review the decision in whole or in part upon motion. If the Secretary grants the requested review, or serves notice of intent to review upon motion, each party to the decision shall have 20 days following notice of the Secretary’s proposed action within which to file exceptions to the decision and supporting briefs and memoranda, or briefs and memoranda in support of the decision. Failure of a party to request review under this section shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.
§ 18b.76 Service on amici curiae.
All briefs, exceptions, memoranda, requests, and decisions referred to in §§ 18b.70 through 18b.76 shall be served upon amici curiae at the same times and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under § 18b.50 shall be served on amici.
Posthearing Department Actions
§ 18b.77 Final Department action.
(a) The final decision of the administrative law judge or reviewing authority that a school or training establishment is not in compliance will be referred by the reviewing authority to the Secretary for approval as required by § 18.10(e) of this chapter. The finding will be accompanied by letters from the Secretary to the House Veterans’ Affairs Committee and the Senate Veterans Affairs Committee containing a full report on the circumstances as required by § 18.8(c) of this chapter, the reasons for the proposed action and a statement that the proposed action will become the final Department action 30 days after the date of the letter.
(b) A copy of the letters to the congressional committees will be sent to all parties to the proceedings.
Judicial Standards of Practice
§ 18b.90 Conduct.
Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in all proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party whether or not a lawyer shall observe the traditional responsibilities of lawyers as officers of the court and use best efforts to restrain the principal represented from improprieties in connection with a proceeding.
§ 18b.91 Improper conduct.
With respect to any proceeding it is improper for any interested person to attempt to sway the judgment of the reviewing authority by undertaking to bring pressure or influence to bear upon the reviewing authority or any officer having a responsibility for a decision in the proceeding, or decisional staff. It is improper that such interested persons or any members of the Department of Veterans Affairs’s staff or the presiding officer give statements to communications media, by paid advertisement or otherwise, designed to influence the judgment of any officer having a responsibility for a decision in the proceeding, or decisional staff. It is improper for any person to solicit communications to any such officer, or decisional staff, other than proper communications by parties or amici curiae.
§ 18b.92 Ex parte communications.
Only persons employed by or assigned to work with the reviewing authority who perform no investigative or prosecuting function in connection with a proceeding shall communicate ex parte with the reviewing authority or the presiding officer, or any employee or person involved in the decisional process in such proceedings with respect to the merits of that or a factually related proceeding. The reviewing authority, the presiding officer, or any employee or person involved in the decisional process of a proceeding shall communicate ex parte with respect to the merits of that or a factually related proceeding only with persons employed by or assigned to work with them and who perform no investigative or prosecuting function in connection with the proceeding.
§ 18b.93 Expeditious treatment.
Requests for expeditious treatment of matters pending before the reviewing authority or the presiding officer are deemed communications on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications should be in the form of a motion.
§ 18b.94 Matters not prohibited.
A request for information which merely inquires about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Such requests should be directed to the civil rights hearing clerk. Communications with respect to minor procedural matters or inquiries or emergency requests for extensions of time are not deemed ex parte communications prohibited by § 18b.92. Where feasible, however, such communications should be by letter with copies to all parties. Ex parte communications between a respondent and the responsible agency official or the Secretary with respect to securing such respondent’s voluntary compliance with any requirement of part 18 of this chapter are not prohibited.
§ 18b.95 Filing of ex parte communications.
A prohibited communication in writing received by the Secretary, the reviewing authority, or by the presiding officer, shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in such memorandum may file a comment for inclusion in the docket if the memorandum is considered to be incorrect.
PART 19 – BOARD OF VETERANS’ APPEALS: LEGACY APPEALS REGULATIONS
Subpart A – Applicability
§ 19.1 Provisions applicable to legacy appeals.
Part 19 and subparts F, G, and J of part 20 apply only to the processing and adjudication of legacy appeals, as defined in § 19.2. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the processing and adjudication of both appeals and legacy appeals. For applicability provisions concerning appeals in the modernized review system, see § 20.4 of this chapter.
§ 19.2 Appellant’s election for review of a legacy appeal in the modernized system.
(a) Effective date. As used in this section, the effective date means February 19, 2019.
(b) Modernized review system. The modernized review system refers to the current statutory framework for claims and appeals processing, set forth in Public Law 115-55, and any amendments thereto, applicable on the effective date. The modernized review system applies to all claims, requests for reopening of finally adjudicated claims, and requests for revision based on clear and unmistakable error for which VA issues notice of an initial decision on or after the effective date, or as otherwise provided in paragraph (d) of this section.
(c) Legacy appeals. A legacy appeal is an appeal of a legacy claim, as defined in 38 CFR 3.2400(b), where a claimant has not elected to participate in the modernized review system as provided in paragraph (d) of this section. A legacy appeal is initiated by the filing of a Notice of Disagreement and is perfected to the Board with the filing of a Substantive Appeal pursuant to applicable regulations in accordance with 38 CFR parts 19 and 20.
(d) Election into the modernized review system. The modernized review system applies to legacy claims and appeals where:
(1) A claimant with a legacy claim or appeal elects the modernized review system pursuant to 38 CFR 3.2400(c)(1);
(2) A claimant with a legacy claim or appeal elects the modernized review system, following issuance, on or after the effective date, of a VA Statement of the Case or Supplemental Statement of the Case. The election is made by filing, on a form prescribed by the Secretary, an appeal in accordance with 38 CFR 20.202, or a review option in accordance with 38 U.S.C. 5108 or 5104B, as implemented by 38 CFR 3.2500 and other applicable regulations. The election must be filed within the time allowed for filing a substantive appeal under § 19.52(b); or
(3) VA issued notice of a decision prior to the effective date, and, pursuant to the Secretary’s authorization to participate in a test program, the claimant elects the modernized review system by filing an appeal in accordance with 38 U.S.C. 7105, or a review option in accordance with 38 U.S.C. 5108 or 5104B.
§§ 19.3-19.19 [Reserved]
Subpart B – Legacy Appeals and Legacy Appeals Processing by Agency of Original Jurisdiction
§ 19.20 What constitutes an appeal.
An appeal consists of a timely filed Notice of Disagreement submitted in accordance with the provisions of § 19.21, and either § 19.52(a) or § 20.501(a) of this chapter, as applicable and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal.
§ 19.21 Notice of Disagreement.
(a) Cases in which a form is provided by the agency of original jurisdiction for the purpose of initiating an appeal.
(1) Format. For every case in which the agency of original jurisdiction (AOJ) provides, in connection with its decision, a form for the purpose of initiating an appeal, a Notice of Disagreement consists of a completed and timely submitted copy of that form. VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result that is submitted in any other format, including on a different VA form.
(2) Provision of form to the claimant. If a claimant has established an online benefits account with VA, or has designated an email address for the purpose of receiving communications from VA, VA may provide an appeal form pursuant to paragraph (a)(1) of this section electronically, whether by email, hyperlink, or other direction to the appropriate form within the claimant’s online benefits account. VA may also provide a form pursuant to paragraph (a)(1) of this section in paper format.
(3) Presumption form was provided. This paragraph (a) applies if there is any indication whatsoever in the claimant’s file or electronic account that a form was sent pursuant to paragraph (a)(1) of this section.
(4) Specificity required by form. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified to the extent a form provided pursuant to paragraph (a)(1) of this section so requires. If the claimant wishes to appeal all of the issues decided by the agency of original jurisdiction, the form must clearly indicate that intent. Issues not identified on the form will not be considered appealed.
(5) Alternate form or other communication. The filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a Notice of Disagreement, as provided in § 19.52(a). In particular, returning the incorrect VA form, including a form designed to appeal a different benefit does not extend, toll, or otherwise delay the time limit for filing the correct form.
(b) Cases in which no form is provided by the agency of original jurisdiction for purpose of initiating an appeal. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement relating to a claim for benefits in any case in which the agency of original jurisdiction does not provide a form identified as being for the purpose of initiating an appeal. The Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified.
(c) Simultaneously contested claims. The provisions of paragraph (b) of this section shall apply to appeals in simultaneously contested claims under Rules 500 and 501 (§§ 20.500 and 20.501 of this chapter), regardless of whether a standardized form was provided with the decision of the agency of original jurisdiction.
§ 19.22 Substantive Appeal.
A Substantive Appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal.
§ 19.23 Applicability of provisions concerning Notice of Disagreement.
(a) Appeals governed by § 19.21(a) shall be processed in accordance with § 19.24. Sections 19.26 and 19.28 shall not apply to appeals governed by § 19.21(a).
(b) Appeals governed by § 19.21(b) shall be processed in accordance with §§ 19.26 and 19.28.
§ 19.24 Action by agency of original jurisdiction on Notice of Disagreement required to be filed on a standardized form.
(a) Initial action. When a timely Notice of Disagreement in accordance with the requirements of § 19.21(a) is filed, the agency of original jurisdiction will reexamine the claim and determine whether additional review or development is warranted.
(b) Incomplete and complete appeal forms – (1) Incomplete appeal forms. In cases governed by § 19.21(a), if VA determines a form filed by the claimant is incomplete and requests clarification, the claimant must timely file a completed version of the correct form in order to initiate an appeal. A claimant is not required to cure or correct the filing of an incomplete form by filing a completed version of the correct form unless VA informs the claimant or his or her representative that the form is incomplete and requests clarification.
(2) Complete appeal forms. In general, a form will be considered complete if the following information is provided:
(i) Information to identify the claimant;
(ii) The claim to which the form pertains;
(iii) Any information necessary to identify the specific nature of the disagreement if the form so requires. For compensation claims, this criterion will be met if the form enumerates the issues or conditions for which appellate review is sought, or if it provides other information required on the form to identify the claimant and the nature of the disagreement (such as disagreement with disability rating, effective date, or denial of service connection); and
(iv) The claimant’s signature.
(3) Timeframe to complete correct form. In general, a claimant who wishes to initiate an appeal must provide a complete form within the timeframe established by § 19.52(a). When VA requests clarification of an incomplete form, the claimant must provide a complete form in response to VA’s request for clarification within the later of the following dates:
(i) 60 days from the date of the request; or
(ii) 1 year from the date of mailing of the notice of the decision of the agency of original jurisdiction.
(4) Failure to respond. If the claimant fails to provide a completed form within the timeframe set forth in paragraph (b)(3) of this section, the decision of the agency of original jurisdiction will become final.
(5) Form timely completed. If a completed form is received within the timeframe set forth in paragraph (b)(3) of this section, VA will treat the completed form as the Notice of Disagreement and VA will reexamine the claim and determine whether additional review or development is warranted. If no further review or development is required, or after necessary review or development is completed, VA will prepare a Statement of the Case pursuant to § 19.29 unless the disagreement is resolved by a grant of the benefit(s) sought on appeal or the NOD is withdrawn by the claimant.
(c) Issues under appellate review. If a form enumerates some but not all of the issues or conditions which were the subject of the decision of the agency of original jurisdiction, the form will be considered complete with respect to the issues for which appellate review is sought and identified by the claimant. Any issues or conditions not enumerated will not be considered appealed on the basis of the filing of that form and will become final unless the claimant timely files a separate form for those issues or conditions within the applicable timeframe set forth in paragraph (b)(3) of this section.
(d) Disagreement concerning whether Notice of Disagreement has been filed. Whether or not a claimant has timely filed a Notice of Disagreement is an appealable issue, but in such a case, appellate consideration shall be limited to the question of whether the correct form was timely filed.
§ 19.25 Notification by agency of original jurisdiction of right to appeal.
The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits.
§ 19.26 Action by agency of original jurisdiction on Notice of Disagreement.
(a) Initial action. When a timely Notice of Disagreement (NOD) is filed, the agency of original jurisdiction (AOJ) must reexamine the claim and determine whether additional review or development is warranted.
(b) Unclear communication or disagreement. If within one year after mailing an adverse decision (or 60 days for simultaneously contested claims), the AOJ receives a written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to request clarification of the claimant’s intent. This contact may be either oral or written.
(1) For oral contacts, VA will contact whoever filed the communication. VA will make a written record of any oral clarification request conveyed to the claimant including the date of the adverse decision involved and the response. In any request for clarification, the AOJ will explain that if a response to this request is not received within the time period described in paragraph (c) of this section, the earlier, unclear communication will not be considered an NOD as to any adverse decision for which clarification was requested.
(2) For written contacts, VA will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, if any.
(c) Response required from claimant – (1) Time to respond. The claimant must respond to the AOJ’s request for clarification within the later of the following dates:
(i) 60 days after the date of the AOJ’s clarification request; or
(ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims).
(2) Failure to respond. If the claimant fails to provide a timely response, the previous communication from the claimant will not be considered an NOD as to any claim for which clarification was requested. The AOJ will not consider the claimant to have appealed the decision(s) on any claim(s) as to which clarification was requested and not received.
(d) Action following clarification. When clarification of the claimant’s intent to file an NOD is obtained, the AOJ will reexamine the claim and determine whether additional review or development is warranted. If no further review or development is required, or after necessary review or development is completed, the AOJ will prepare a Statement of the Case pursuant to § 19.29 unless the disagreement is resolved by a grant of the benefit(s) sought on appeal or the NOD is withdrawn by the claimant.
(e) Representatives and fiduciaries. For the purpose of the requirements in paragraphs (b) through (d) of this section, references to the “claimant” include reference to the claimant or his or her representative, if any, or to his or her fiduciary, if any, as appropriate.
§ 19.27 [Reserved]
§ 19.28 Determination that a Notice of Disagreement is inadequate protested by claimant or representative.
Whether a Notice of Disagreement is adequate is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to the adequacy of a Notice of Disagreement, the claimant will be furnished a Statement of the Case.
§ 19.29 Statement of the Case.
The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans’ Appeals. It must contain:
(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;
(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and
(c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.
§ 19.30 Furnishing the Statement of the Case and instructions for filing a Substantive Appeal.
(a) To whom the Statement of the Case is furnished. The Statement of the Case will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative (if any).
(b) Information furnished with the Statement of the Case. With the Statement of the Case, the appellant and the representative will be furnished information on the right to file, and time limit for filing, a substantive appeal; information on hearing and representation rights; a VA Form 9, “Appeal to Board of Veterans’ Appeals”; and a statement describing the available review options if the appellant elects review of the issue or issues on appeal in the modernized review system.
§ 19.31 Supplemental statement of the case.
(a) Purpose and limitations. A “Supplemental Statement of the Case,” so identified, is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. The information furnished with the Supplemental Statement of the Case shall include a statement describing the available review options if the appellant elects review of the issue or issues on appeal in the modernized system. In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. The agency of original jurisdiction will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case using the procedures in §§ 19.29 and 19.30 of this part (relating to statements of the case).
(b) When furnished. The agency of original jurisdiction will furnish the appellant and his or her representative, if any, a Supplemental Statement of the Case if:
(1) The agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans’ Appeals and the appellate record is transferred to the Board;
(2) A material defect in the Statement of the Case or a prior Supplemental statement of the Case is discovered; or
(3) For any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate.
(c) Pursuant to remand from the Board. The agency of original jurisdiction will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect, unless:
(1) The only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case; or
(2) The Board specifies in the remand that a Supplemental Statement of the Case is not required.
(d) Exception. Paragraph (b)(1) of this section does not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
§ 19.32 Closing of appeal for failure to respond to Statement of the Case.
The agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to a Statement of the Case within the period allowed. However, if a Substantive Appeal is subsequently received within the 1-year appeal period (60-day appeal period for simultaneously contested claims), the appeal will be considered to be reactivated.
§ 19.33 [Reserved]
§ 19.34 Determination that Notice of Disagreement or Substantive Appeal was not timely filed protested by claimant or representative.
Whether a Notice of Disagreement or Substantive Appeal has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to timely filing of the Notice of Disagreement or Substantive Appeal, the claimant will be furnished a Statement of the Case.
§ 19.35 Certification of appeals.
Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans’ Appeals. The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans’ Appeals of jurisdiction over an issue.
§ 19.36 Notification of certification of appeal and transfer of appellate record.
When an appeal is certified to the Board of Veterans’ Appeals for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in Rule 1305 (§ 20.1305 of this chapter). Provisions in this section for submitting additional evidence and references to § 20.1305 do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to suspend or cancel accreditation or to review fee agreements and expenses for reasonableness.
§ 19.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated.
(a) Evidence received prior to transfer of records to Board of Veterans’ Appeals. Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans’ Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in § 19.31 of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal.
(b) Evidence received after transfer of records to the Board of Veterans’ Appeals. Additional evidence received by the agency of original jurisdiction after the records have been transferred to the Board of Veterans’ Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence.
(c) The provisions of this section do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
§ 19.38 Action by agency of original jurisdiction when remand received.
When a case is remanded by the Board of Veterans’ Appeals, the agency of original jurisdiction will complete the additional development of the evidence or procedural development required. Following completion of the development, the case will be reviewed to determine whether the additional development, together with the evidence which was previously of record, supports the allowance of all benefits sought on appeal. If so, the appellant and his or her representative, if any, will be promptly informed. If any benefits sought on appeal remain denied following this review, the agency of original jurisdiction will issue a Supplemental Statement of the Case concerning the additional development pertaining to those issues in accordance with the provisions of § 19.31 of this part. Following the 30-day period allowed for a response to the Supplemental Statement of the Case pursuant to § 19.52(c), the case will be returned to the Board for further appellate processing unless the appeal is withdrawn or review of the response to the Supplemental Statement of the Case results in the allowance of all benefits sought on appeal. Remanded cases will not be closed for failure to respond to the Supplemental Statement of the Case.
§§ 19.39-19.49 [Reserved]
Subpart C – Claimant Action in a Legacy Appeal
§ 19.50 Who can file an appeal.
(a) Persons authorized. A Notice of Disagreement and/or a Substantive Appeal may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representation, as applicable, is on record or accompanies such Notice of Disagreement or Substantive Appeal.
(b) Claimant rated incompetent by Department of Veterans Affairs or under disability and unable to file. If an appeal is not filed by a person listed in paragraph (a) of this section, and the claimant is rated incompetent by the Department of Veterans Affairs or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a Notice of Disagreement and a Substantive Appeal may be filed by a fiduciary appointed to manage the claimant’s affairs by the Department of Veterans Affairs or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed.
(c) Claimant under disability and able to file. Notwithstanding the fact that a fiduciary may have been appointed for a claimant, an appeal filed by a claimant will be accepted.
§ 19.51 Place of filing Notice of Disagreement and Substantive Appeal.
The Notice of Disagreement and Substantive Appeal must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable Department of Veterans Affairs records have been transferred to another Department of Veterans Affairs office. In that case, the Notice of Disagreement or Substantive Appeal must be filed with the Department of Veterans Affairs office which has assumed jurisdiction over the applicable records.
§ 19.52 Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case.
(a) Notice of Disagreement. Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.
(b) Substantive Appeal – (1) General. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.
(2) Special rule in certain cases where additional evidence is submitted. Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with § 19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a Substantive Appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period.
(c) Response to Supplemental Statement of the Case. Where a Supplemental Statement of the Case is furnished, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.
§ 19.53 Extension of time for filing Substantive Appeal and response to Supplemental Statement of the Case.
An extension of the 60-day period for filing a Substantive Appeal, or the 30-day period for responding to a Supplemental Statement of the Case, may be granted for good cause. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal or the response to the Supplemental Statement of the Case. The request for extension must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable records have been transferred to another Department of Veterans Affairs office. A denial of a request for extension may be appealed to the Board.
§ 19.54 Filing additional evidence does not extend time limit for appeal.
Except as provided in § 19.52(b), the filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination.
§ 19.55 Withdrawal of Appeal.
(a) When and by whom filed. Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal.
(b) Filing – (1) Content. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.
(2) Where to file. Appeal withdrawals should be filed with the agency of original jurisdiction until the appellant or representative filing the withdrawal receives notice that the appeal has been transferred to the Board. Thereafter, file the withdrawal at the Board.
(3) When effective. Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction. Thereafter, it is not effective until received by the Board. A withdrawal received by the Board after the Board issues a final decision under Rule 1100(a) (§ 20.1100(a) of this chapter) will not be effective.
(c) Effect of filing. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed.
§§ 19.56-19.74 [Reserved]
Subpart D [Reserved]
Subpart E – Simultaneously Contested Claims
§ 19.100 Notification of right to appeal in simultaneously contested claims.
All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for initiation of an appeal, as well as hearing and representation rights.
§ 19.101 Notice to contesting parties on receipt of Notice of Disagreement in simultaneously contested claims.
Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the Statement of the Case. The Statement of the Case so furnished will contain only information which directly affects the payment or potential payment of the benefit(s) which is (are) the subject of that contested claim. The interested parties who filed Notices of Disagreement will be duly notified of the right to file, and the time limit within which to file, a Substantive Appeal and will be furnished with VA Form 9, “Appeal to Board of Veterans’ Appeals.”
§ 19.102 Notice of appeal to other contesting parties in simultaneously contested claims.
When a Substantive Appeal is filed in a simultaneously contested claim, the content of the Substantive Appeal will be furnished to the other contesting parties to the extent that it contains information which could directly affect the payment or potential payment of the benefit which is the subject of the contested claim.
§§ 19.103-19.199 [Reserved]
PART 20 – BOARD OF VETERANS’ APPEALS: RULES OF PRACTICE
Subpart A – General
§ 20.1 Rule 1. Purpose and construction of Rules of Practice.
(a) Purpose. These rules establish the practices and procedures governing appeals to the Board of Veterans’ Appeals (Board).
(b) Construction. These rules are to be construed to secure a just and speedy decision in every appeal.
§ 20.2 Rule 2. Procedure in absence of specific Rule of Practice.
Where in any instance there is no applicable rule or procedure, the Chairman may prescribe a procedure which is consistent with the provisions of title 38, United States Code, and these rules.
§ 20.3 Rule 3. Definitions.
As used in these Rules:
(a) Agency of original jurisdiction means the Department of Veterans Affairs activity or administration, that is, the Veterans Benefits Administration, Veterans Health Administration, or National Cemetery Administration, that made the initial determination on a claim.
(b) Agent means a person who has met the standards and qualifications for accreditation outlined in § 14.629(b) of this chapter and who has been properly designated under the provisions of § 14.631 of this chapter. It does not include representatives accredited under § 14.629(a) of this chapter, attorneys accredited under § 14.629(b) of this chapter, or a person authorized to represent a claimant for a particular claim under § 14.630 of this chapter.
(c) Appellant means a claimant who has filed an appeal to the Board of Veterans’ Appeals either as a legacy appeal or in the modernized review system, as those terms are defined in § 19.2 of this chapter, and Rule 4 (§ 20.4 of this part), respectively.
(d) Attorney-at-law means a member in good standing of a State bar.
(e) Benefit means any payment, service, commodity, function, or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.
(f) Claim means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.
(g) Claimant means a person who has filed a claim, as defined by paragraph (f) of this section.
(h) Hearing on appeal or Board hearing means a hearing conducted after a Notice of Disagreement has been filed in which testimony is presented concerning the determination, or determinations, by the agency of original jurisdiction being appealed.
(i) Motion means a request that the Board rule on some question which is subsidiary to the ultimate decision on the outcome of an appeal. For example, a request to correct a hearing transcript (see Rule 714 (§ 20.714)) is raised by motion. Unless raised orally at a personal hearing before Members of the Board, motions for consideration by the Board must be made in writing. No formal type of document is required. The motion may be in the form of a letter which contains the necessary information.
(j) Past-due benefits means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim readjudicated after a denial by the Board of Veterans’ Appeals or the lump sum payment which represents the total amount of recurring cash payments which accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board of Veterans’ Appeals, or an appellate court.
(k) Presiding Member means that Member of the Board who presides over a hearing, whether conducted as a single Member or panel hearing.
(l) Simultaneously contested claim refers to the situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the allowance of one claim results in the payment of a lesser benefit to another claimant.
(m) State includes any State, possession, territory, or Commonwealth of the United States, as well as the District of Columbia.
§ 20.4 Rule 4. Appeal systems definitions and applicability provisions.
(a) Appeal – (1) In general. An appeal consists of a Notice of Disagreement timely filed to the Board on any issue or issues for which VA provided notice of a decision under 38 U.S.C. 5104 on or after the effective date, as defined in § 19.2(a) of this chapter.
(2) Appellant’s election for review of a legacy claim or appeal in the modernized review system. The regulations applicable to appeals are also applicable to legacy claims and appeals, as those terms are defined in §§ 3.2400(b) and 19.2(c) of this chapter, where the claimant elects the modernized review system pursuant to § 19.2(d) of this chapter, and upon the timely filing to the Board of a Notice of Disagreement.
(b) Applicability of parts 19 and 20 – (1) Appeals. Subparts C, D, E, and I of part 20 apply only to the processing and adjudication of appeals in the modernized review system.
(2) Legacy claims and appeals. Part 19 and subparts F, G, and J of part 20 apply only to the processing and adjudication of legacy claims and appeals.
(3) Both appeals systems. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the processing and adjudication of both appeals and legacy claims and appeals.
§ 20.5 Rule 5. Right to representation.
An appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person.
§ 20.6 Rule 6. Withdrawal of services by a representative.
(a)(1) Applicability. The restrictions on a representative’s right to withdraw contained in this paragraph apply only to those cases in which the representative has previously agreed to act as representative in an appeal. In addition to express agreement, orally or in writing, such agreement shall be presumed if the representative makes an appearance in the case by acting on an appellant’s behalf before the Board in any way after the appellant has designated the representative as such as provided in § 14.630 or § 14.631 of this chapter. The preceding sentence notwithstanding, an appearance in an appeal solely to notify the Board that a designation of representation has not been accepted will not be presumed to constitute such consent.
(2) Procedures. Except as otherwise provided in paragraph (b) of this section, after an appeal to the Board of Veterans’ Appeals has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted, and a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed. Such motions should not contain information which would violate privileged communications or which would otherwise be unethical to reveal. Such motions must be filed at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. The appellant may file a response to the motion with the Board at the same address not later than 30 days following receipt of the copy of the motion and must include a signed statement certifying that a copy of the response was sent by first-class mail, postage prepaid, to the representative, setting forth the address to which the copy was mailed.
(b) Withdrawal of services prior to certification of a legacy appeal. A representative may withdraw services as representative in a legacy appeal at any time prior to certification of the appeal to the Board of Veterans’ Appeals by the agency of original jurisdiction by complying with the requirements of § 14.631 of this chapter.
§§ 20.7-20.99 [Reserved]
Subpart B – The Board
§ 20.100 Rule 100. Establishment of the Board.
The Board of Veterans’ Appeals is established by authority of, and functions pursuant to, title 38, United States Code, chapter 71.
§ 20.101 Rule 101. Composition of the Board; titles.
(a) The Board consists of a Chairman, Vice Chairman, Deputy Vice Chairmen, Members and professional, administrative, clerical and stenographic personnel. Deputy Vice Chairmen are Members of the Board who are appointed to that office by the Secretary upon the recommendation of the Chairman.
(b) A Member of the Board (other than the Chairman) may also be known as a Veterans Law Judge. An individual designated as an acting member pursuant to 38 U.S.C. 7101(c)(1) may also be known as an acting Veterans Law Judge.
§ 20.102 Rule 102. Name, business hours, and mailing address of the Board.
(a) Name. The name of the Board is the Board of Veterans’ Appeals.
(b) Business hours. The Board is open during business hours on all days except Saturday, Sunday and legal holidays. Business hours are from 8 a.m. to 4:30 p.m.
(c) Mailing address. The mailing address of the Board is: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. Mail to the Board that is not related to an appeal must be addressed to: Board of Veterans’ Appeals, 810 Vermont Avenue NW, Washington, DC 20420.
§ 20.103 Rule 103. Principal functions of the Board.
The principal functions of the Board are to make determinations of appellate jurisdiction, consider all applications on appeal properly before it, conduct hearings on appeal, evaluate the evidence of record, and enter decisions in writing on the questions presented on appeal.
§ 20.104 Rule 104. Jurisdiction of the Board.
(a) General. All questions of law and fact necessary to a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors are subject to review on appeal to the Secretary. Decisions in such appeals are made by the Board of Veterans’ Appeals. Examples of the issues over which the Board has jurisdiction include, but are not limited to, the following:
(1) Entitlement to, and benefits resulting from, service-connected disability or death (38 U.S.C. chapter 11).
(2) Dependency and indemnity compensation for service-connected death, including benefits in certain cases of inservice or service-connected deaths (38 U.S.C. 1312) and certification and entitlement to death gratuity (38 U.S.C. 1323).
(3) Benefits for survivors of certain veterans rated totally disabled at time of death (38 U.S.C. 1318).
(4) Entitlement to nonservice-connected disability pension, service pension and death pension (38 U.S.C. chapter 15).
(5) All-Volunteer Force Educational Assistance Program (38 U.S.C. chapter 30).
(6) Training and Rehabilitation for Veterans with Service-Connected Disabilities (38 U.S.C. chapter 31).
(7) Post-Vietnam Era Veterans’ Educational Assistance (38 U.S.C. chapter 32).
(8) Veterans’ Educational Assistance (38 U.S.C. chapter 34).
(9) Survivors’ and Dependents’ Educational Assistance (38 U.S.C. chapter 35).
(10) Veterans’ Job Training (Pub. L. 98-77, as amended; 38 CFR 21.4600 et seq.).
(11) Educational Assistance for Members of the Selected Reserve (10 U.S.C. chapter 106).
(12) Educational Assistance Test Program (10 U.S.C. chapter 107; 38 CFR 21.5701 et seq.).
(13) Educational Assistance Pilot Program (10 U.S.C. chapter 107; 38 CFR 21.5290 et seq.).
(14) Matters arising under National Service Life Insurance and United States Government Life Insurance (38 U.S.C. chapter 19).
(15) Payment or reimbursement for unauthorized medical expenses (38 U.S.C. 1728).
(16) Burial benefits and burial in National Cemeteries (38 U.S.C. chapters 23 and 24).
(17) Benefits for persons disabled by medical treatment or vocational rehabilitation (38 U.S.C. 1151).
(18) Basic eligibility for home, condominium and mobile home loans as well as waiver of payment of loan guaranty indebtedness (38 U.S.C. chapter 37, 38 U.S.C. 5302).
(19) Waiver of recovery of overpayments (38 U.S.C. 5302).
(20) Forfeiture of rights, claims or benefits for fraud, treason, or subversive activities (38 U.S.C. 6102-6105).
(21) Character of discharge (38 U.S.C. 5303).
(22) Determinations as to duty status (38 U.S.C. 101(21)-(24)).
(23) Determinations as to marital status (38 U.S.C. 101(3), 103).
(24) Determination of dependency status as parent or child (38 U.S.C. 101(4), (5)).
(25) Validity of claims and effective dates of benefits (38 U.S.C. chapter 51).
(26) Apportionment of benefits (38 U.S.C. 5307).
(27) Payment of benefits while a veteran is hospitalized and questions regarding an estate of an incompetent institutionalized veteran (38 U.S.C. 5503).
(28) Benefits for surviving spouses and children of deceased veterans under Public Law 97-377, section 156 (38 CFR 3.812(d)).
(29) Eligibility for automobile and automobile adaptive equipment assistance (38 U.S.C. chapter 39).
(b) Appellate jurisdiction of determinations of the Veterans Health Administration. The Board’s appellate jurisdiction extends to questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care; for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances; and for other benefits administered by the Veterans Health Administration. Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board’s jurisdiction. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced.
(c) Authority to determine jurisdiction. The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case. When the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s). The date of mailing of the notice will be presumed to be the same as the date stamped on the letter of notification. The Board may dismiss any case over which it determines it does not have jurisdiction.
(d)(1) Appeals as to jurisdiction in legacy claims and appeals. All claimants in legacy appeals, as defined in § 19.2 of this chapter, have the right to appeal a determination made by the agency of original jurisdiction that the Board does not have jurisdictional authority to review a particular case. Jurisdictional questions which a claimant may appeal, include, but are not limited to, questions relating to the timely filing and adequacy of the Notice of Disagreement and the Substantive Appeal.
(2) Application of 20.904 and 20.1305. Section 20.904 of this part shall not apply to proceedings to determine the Board’s own jurisdiction. However, the Board may remand a case to an agency of original jurisdiction in order to obtain assistance in securing evidence of jurisdictional facts. The time restrictions on requesting a hearing and submitting additional evidence in § 20.1305 of this part do not apply to a hearing requested, or evidence submitted, under paragraph (c) of this section.
§ 20.105 Rule 105. Criteria governing disposition of appeals.
In the consideration of appeals and in its decisions, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues.
§ 20.106 Rule 106. Assignment of proceedings.
(a) Assignment. The Chairman may assign a proceeding instituted before the Board, including any motion, to an individual Member or to a panel of three or more Members for adjudication or other appropriate action. The Chairman may participate in a proceeding assigned to a panel of Members.
(b) Inability to serve. If a Member is unable to participate in the disposition of a proceeding or motion to which the Member has been assigned, the Chairman may assign the proceeding or motion to another Member or substitute another Member (in the case of a proceeding or motion assigned to a panel).
§ 20.107 Rule 107. Disqualification of Members.
(a) General. A Member of the Board will disqualify himself or herself in a hearing or decision on an appeal if that appeal involves a determination in which he or she participated or had supervisory responsibility in the agency of original jurisdiction prior to his or her appointment as a Member of the Board, or where there are other circumstances which might give the impression of bias either for or against the appellant.
(b) Disqualification of Members by the Chairman. The Chairman of the Board, on his or her own motion, may disqualify a Member from acting in an appeal on the grounds set forth in paragraph (a) of this section and in those cases where a Member is unable or unwilling to act.
The Chairman and/or Vice Chairman have authority delegated by the Secretary of Veterans Affairs to:
(a) Approve the assumption of appellate jurisdiction of an adjudicative determination which has not become final in order to grant a benefit, and
(b) Order VA Central Office investigations of matters before the Board.
(a) The authority exercised by the Chairman of the Board of Veterans’ Appeals described in Rules 106(b) and 107(b) (§§ 20.106(b) and 20.107(b)) may also be exercised by the Vice Chairman of the Board.
(b) The authority exercised by the Chairman of the Board of Veterans’ Appeals described in Rules 1004 and 1002(c) (§§ 20.1004 and 20.1002(c)) may also be exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen of the Board.
(c) The authority exercised by the Chairman of the Board of Veterans’ Appeals described in Rule 2 (§ 20.2), may also be exercised by the Vice Chairman of the Board; by Deputy Vice Chairmen of the Board; and, in connection with a proceeding or motion assigned to them by the Chairman, by a Member or Members of the Board.
§ 20.110 Rule 110. Computation of time limit for filing.
(a) Acceptance of postmark date. When these Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the Department of Veterans Affairs. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded.
(b) Computation of time limit. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.
§ 20.111 Rule 111. Legal holidays.
For the purpose of Rule 110 (§ 20.110), the legal holidays, in addition to any other day appointed as a holiday by the President or the Congress of the United States, are as follows: New Year’s Day – January 1; Inauguration Day – January 20 of every fourth year or, if the 20th falls on a Sunday, the next succeeding day selected for public observance of the inauguration; Birthday of Martin Luther King, Jr. – Third Monday in January; Washington’s Birthday – Third Monday in February; Memorial Day – Last Monday in May; Independence Day – July 4; Labor Day – First Monday in September; Columbus Day – Second Monday in October; Veterans Day – November 11; Thanksgiving Day – Fourth Thursday in November; and Christmas Day – December 25. When a holiday occurs on a Saturday, the Friday immediately before is the legal public holiday. When a holiday occurs on a Sunday, the Monday immediately after is the legal public holiday.
§§ 20.112-20.199 [Reserved]
Subpart C – Commencement and Filing of Appeals
§ 20.200 Rule 200. Notification by agency of original jurisdiction of right to appeal.
The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits, pursuant to 38 U.S.C. 5104, 5104B, and 5108.
§ 20.201 Rule 201. What constitutes an appeal.
An appeal of a decision by the agency of original jurisdiction consists of a Notice of Disagreement submitted to the Board in accordance with the provisions of §§ 20.202-20.204.
§ 20.202 Rule 202. Notice of Disagreement.
(a) In general. A Notice of Disagreement must be properly completed on a form prescribed by the Secretary. If the agency of original jurisdiction decision addressed several issues, the Notice of Disagreement must identify the specific decision and issue or issues therein with which the claimant disagrees. The term issue means an adjudication of a specific entitlement as described in 38 CFR 3.151(c). The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to identify the specific decision and issue or issues therein with which the claimant disagrees.
(b) Review options. Upon filing the Notice of Disagreement, a claimant must indicate whether the claimant requests:
(1) Direct review by the Board of the record before the agency of original jurisdiction at the time of its decision, without submission of additional evidence or a Board hearing;
(2) A Board hearing, to include an opportunity to submit additional evidence at the hearing and within 90 days following the hearing; or
(3) An opportunity to submit additional evidence without a Board hearing with the Notice of Disagreement and within 90 days following receipt of the Notice of Disagreement.
(c)(1) The information indicated by the claimant in paragraph (b) of this section determines the evidentiary record before the Board as described in subpart D of this part, and the docket on which the appeal will be placed, as described in Rule 800 (§ 20.800). Except as otherwise provided in paragraph (2) of this section, the Board will not consider evidence as described in Rules 302 or 303 (§§ 20.302 and 20.303) unless the claimant requests a Board hearing or an opportunity to submit additional evidence on the Notice of Disagreement.
(2) A claimant may modify the information identified in the Notice of Disagreement for the purpose of selecting a different evidentiary record option as described in paragraph (b) of this section. Requests to modify a Notice of Disagreement must be made by completing a new Notice of Disagreement on a form prescribed by the Secretary, and must be received at the Board within one year from the date that the agency of original jurisdiction mails notice of the decision on appeal, or within 60 days of the date that the Board receives the Notice of Disagreement, whichever is later. Requests to modify a Notice of Disagreement will not be granted if the appellant has submitted evidence or testimony as described in §§ 20.302 and 20.303.
(d) Standard form required. The Board will not accept as a Notice of Disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result that is submitted in any format other than the form prescribed by the Secretary, including on a different VA form.
(e) Alternate form or other communication. The filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a Notice of Disagreement, as provided in § 20.203(b). In particular, returning the incorrect VA form does not extend, toll, or otherwise delay the time limit for filing the correct form.
(f) Unclear Notice of Disagreement. If within one year after mailing an adverse decision (or 60 days for simultaneously contested claims), the Board receives a Notice of Disagreement completed on the form prescribed by the Secretary, but the Board cannot identify which denied issue or issues the claimant wants to appeal or which option the claimant intends to select under paragraph (b) of this section, then the Board will contact the claimant to request clarification of the claimant’s intent.
(g) Response required from claimant – (1) Time to respond. The claimant must respond to the Board’s request for clarification on or before the later of the following dates:
(i) 60 days after the date of the Board’s clarification request; or
(ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims).
(2) Failure to respond. If the claimant fails to provide a timely response, the previous communication from the claimant will not be considered a Notice of Disagreement as to any claim for which clarification was requested. The Board will not consider the claimant to have appealed the decision(s) on any claim(s) as to which clarification was requested and not received.
(h) Action following clarification. The unclear Notice of Disagreement is properly completed, and thereby filed, under paragraph (a) of this section when the Board receives the clarification.
(i) Representatives and fiduciaries. For the purpose of the requirements in paragraphs (f) through (h) of this section, references to the “claimant” include reference to the claimant or his or her representative, if any, or to his or her fiduciary, if any, as appropriate.
§ 20.203 Rule 203. Place and time of filing of Notice of Disagreement.
(a) Place of filing. The Notice of Disagreement must be filed with the Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(b) Time of filing. Except as provided in § 20.402 for simultaneously contested claims, a claimant, or his or her representative, must file a properly completed Notice of Disagreement with a decision by the agency of original jurisdiction within one year from the date that the agency mails the notice of the decision. The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.
(c) Extension of time of filing. An extension of the period for filing a Notice of Disagreement or a request to modify a Notice of Disagreement may be granted for good cause. A request for such an extension must be in writing and must be filed with the Board. Whether good cause for an extension has been established will be determined by the Board.
§ 20.204 Rule 204. Who can file a Notice of Disagreement.
(a) Persons authorized. A Notice of Disagreement may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney is on record or accompanies such Notice of Disagreement.
(b) Claimant rated incompetent by Department of Veterans Affairs or under disability and unable to file. If an appeal is not filed by a person listed in paragraph (a) of this section, and the claimant is rated incompetent by the Department of Veterans Affairs or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a Notice of Disagreement may be filed by a fiduciary appointed to manage the claimant’s affairs by the Department of Veterans Affairs or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed.
(c) Claimant under disability and able to file. Notwithstanding the fact that a fiduciary may have been appointed for a claimant, an appeal filed by a claimant will be accepted.
§ 20.205 Rule 205. Withdrawal of appeal.
(a) When and by whom filed. Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal.
(b) Filing – (1) Content. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.
(2) Where to file. Appeal withdrawals should be filed with the Board.
(3) When effective. An appeal withdrawal is effective when received by the Board. A withdrawal received after the Board issues a final decision under Rule 1100(a) (§ 20.1100(a)) will not be effective.
(c) Effect of filing. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement pursuant to this subpart, a request for higher-level review under 38 U.S.C. 5104B, or a supplemental claim under 38 U.S.C. 5108, as to any issue withdrawn, provided such filing would be timely under these rules if the withdrawn appeal had never been filed.
§§ 20.206-20.299 [Reserved]
Subpart D – Evidentiary Record
§ 20.300 Rule 300. General.
(a) Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence or testimony submitted pursuant to this subpart, as provided in § 20.801.
(b) Waiver of appellant’s right to submit evidence. For appeals described in 20.302 and 20.303, an appellant has a right to submit evidence during a period of 90 days, unless this right is waived by the appellant or representative at any time prior to the expiration of the applicable 90-day period. Such a waiver must be in writing or, if a hearing on appeal is conducted pursuant to 20.302, the waiver must be formally and clearly entered on the record orally at the time of the hearing.
§ 20.301 Rule 301. Appeals with no request for a Board hearing and no additional evidence.
For appeals in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board’s decision will be based on a review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal.
§ 20.302 Rule 302. Appeals with a request for a Board hearing.
(a) Except as described in paragraphs (b) and (c) of this section, for appeals in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board’s decision will be based on a review of the following:
(1) Evidence of record at the time of the agency of original jurisdiction’s decision on the issue or issues on appeal;
(2) Evidence submitted by the appellant or his or her representative at the hearing, to include testimony provided at the hearing; and
(3) Evidence submitted by the appellant or his or her representative within 90 days following the hearing.
(b) In the event that the hearing request is withdrawn pursuant to § 20.704(e), the Board’s decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal.
(c) In the event that the appellant does not appear for a scheduled hearing, and the hearing is not rescheduled subject to § 20.704(d), the Board’s decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing.
§ 20.303 Rule 303. Appeals with no request for a Board hearing, but with a request for submission of additional evidence.
For appeals in which the appellant requested, on the Notice of Disagreement, an opportunity to submit additional evidence without a Board hearing, the Board’s decision will be based on a review of the following:
(a) Evidence of record at the time of the agency of original jurisdiction’s decision on the issue or issues on appeal; and
(b) Evidence submitted by the appellant or his or her representative:
(1) With the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement; or,
(2) If the appellant did not request an opportunity to submit additional evidence on the Notice of Disagreement, but subsequently requested to submit additional evidence pursuant to Rule 202 (§ 20.202(c)(2)(ii)), within 90 days following VA’s notice that the appeal has been moved to the docket described in § 20.800(a)(ii).
§§ 20.304-20.399 [Reserved]
Subpart E – Appeal in Simultaneously Contested Claims
§ 20.400 Rule 400. Notification of the right to appeal in a simultaneously contested claim.
All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for submitting a Notice of Disagreement to the Board, as well as hearing and representation rights.
§ 20.401 Rule 401. Who can file an appeal in simultaneously contested claims.
In simultaneously contested claims, any claimant or representative of a claimant may file a Notice of Disagreement within the time limits set out in Rule 402 (§ 20.402).
§ 20.402 Rule 402. Time limits for filing Notice of Disagreement in simultaneously contested claims.
In simultaneously contested claims, the Notice of Disagreement from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed.
§ 20.403 Rule 403. Notice to contesting parties on receipt of Notice of Disagreement in simultaneously contested claims.
Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the substance of the Notice of Disagreement. The notice will inform the contesting party or parties of what type of review the appellant who initially filed a Notice of Disagreement selected under § 20.202(b), including whether a hearing was requested.
§ 20.404 Rule 404. Time limit for response to appeal by another contesting party in a simultaneously contested claim.
A party to a simultaneously contested claim may file a brief, argument, or request for a different type of review under § 20.202(b) in answer to a Notice of Disagreement filed by another contesting party. Any such brief, argument, or request must be filed with the Board within 30 days from the date the content of the Notice of Disagreement is furnished as provided in § 20.403. Such content will be presumed to have been furnished on the date of the letter that accompanies the content.
§ 20.405 Rule 405. Docketing of simultaneously contested claims at the Board.
After expiration of the 30-day period for response in § 20.404, the Board will place all parties of the simultaneously contested claim on the docket for the type of review requested under § 20.202(b). In the event the parties request different types of review, if any party requests a hearing the appeal will be placed on the docket described in § 20.800(a)(iii), and VA will notify the parties that a hearing will be scheduled. If no party requested a hearing, but any party requested the opportunity to submit additional evidence, the appeal will be placed on the docket described in § 20.800(a)(ii), and the parties will be notified of their opportunity to submit additional evidence within 90 days of the date of such notice.
§ 20.406 Rule 406. Notices sent to last addresses of record in simultaneously contested claims.
Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice.
§ 20.407 Rule 407. Favorable findings are not binding in contested claims.
Where a claim is contested, findings favorable to either party, as described in Rule 801 (§ 20.801), are no longer binding on all agency of original jurisdiction and Board of Veterans’ Appeals adjudicators during the pendency of the contested appeal.
§§ 20.408-20.499 [Reserved]
Subpart F – Legacy Appeal in Simultaneously Contested Claims
§ 20.500 Rule 500. Applicability.
The provisions of this subpart apply to legacy appeals, as defined in § 19.2 of this chapter.
§ 20.501 Rule 501. Who can file an appeal in simultaneously contested claims.
In a simultaneously contested claim, any claimant or representative of a claimant may file a Notice of Disagreement or Substantive Appeal within the time limits set out in Rule 502 (§ 20.502).
§ 20.502 Rule 502. Time limits for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case in simultaneously contested claims.
(a) Notice of Disagreement. In simultaneously contested claims, the Notice of Disagreement from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed.
(b) Substantive Appeal. In the case of simultaneously contested claims, a Substantive Appeal must be filed within 30 days from the date of mailing of the Statement of the Case. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case for purposes of determining whether an appeal has been timely filed.
(c) Supplemental Statement of the Case. Where a Supplemental Statement of the Case is furnished by the agency of original jurisdiction in a simultaneously contested claim, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response, but the receipt of a Supplemental Statement of the Case will not extend the time allowed for filing a Substantive Appeal as set forth in paragraph (b) of this section. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.
§ 20.503 Rule 503. Time limit for response to appeal by another contesting party in a simultaneously contested claim.
A party to a simultaneously contested claim may file a brief or argument in answer to a Substantive Appeal filed by another contesting party. Any such brief or argument must be filed with the agency of original jurisdiction within 30 days from the date the content of the Substantive Appeal is furnished as provided in § 19.102 of this chapter. Such content will be presumed to have been furnished on the date of the letter that accompanies the content.
§ 20.504 Rule 504. Extension of time for filing a Substantive Appeal in simultaneously contested claims.
An extension of the 30-day period to file a Substantive Appeal in simultaneously contested claims may be granted if good cause is shown. In granting an extension, consideration will be given to the interests of the other parties involved. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal.
§ 20.505 Rule 505. Notices sent to last addresses of record in simultaneously contested claims.
Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice.
§§ 20.506-20.599 [Reserved]
Subpart G – Legacy Hearings on Appeal
§ 20.600 Rule 600. Applicability.
(a) The provisions in this subpart apply to Board hearings conducted in legacy appeals, as defined in § 19.2 of this chapter.
(b) Except as otherwise provided, Rules 700, 701, 704, 705, and 707-715 (§§ 20.700, 20.701, 20.704, 20.705, and 20.707-20.715) are also applicable to Board hearings conducted in legacy appeals.
§ 20.601 Rule 601. Methods by which hearings in legacy appeals are conducted; scheduling and notice provisions for such hearings.
(a) Methods by which hearings in legacy appeals are conducted. A hearing on appeal before the Board may be held by one of the following methods:
(1) In person at the Board’s principal location in Washington, DC;
(2) By electronic hearing, through voice transmission or through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility or appropriate Federal facility; or
(3) At a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings.
(b) Electronic hearings. An appropriate Federal facility consists of a Federal facility having adequate physical resources and personnel for the support of such hearings.
(c) Provisions for scheduling and providing notice of hearings in legacy appeals.
(1) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted by the methods described in paragraphs (a)(1) and (a)(2) of this section are contained in Rule 704 (§ 20.704).
(2) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings under (a)(3) are contained in Rule 603 (§ 20.603).
§ 20.602 Rule 602. When a hearing before the Board of Veterans’ Appeals may be requested in a legacy appeal; procedure for requesting a change in method of hearing.
(a) How to request a hearing. An appellant, or an appellant’s representative, may request a hearing before the Board when submitting the substantive appeal (VA Form 9) or anytime thereafter, subject to the restrictions in Rule 1305 (§ 20.1305). Requests for such hearings before a substantive appeal has been filed will be rejected.
(b) Board’s determination of method of hearing. Following the receipt of a request for a hearing, the Board shall determine, for purposes of scheduling the hearing for the earliest practical date, whether a hearing before the Board will be held at its principal location or at a facility of the Department or other appropriate Federal facility located within the area served by a regional office of the Department. The Board shall also determine whether the hearing will occur by means of an electronic hearing or by the appellant personally appearing before a Board member or panel. An electronic hearing will be in lieu of a hearing held by personally appearing before a Member or panel of Members of the Board and shall be conducted in the same manner as, and considered the equivalent of, such a hearing.
(c) Notification of method of hearing. The Board will notify the appellant and his or her representative of the method of a hearing before the Board.
(d) How to request a change in method of hearing. Upon notification of the method of the hearing requested pursuant to paragraph (c) of this section, an appellant may make one request for a different method of the requested hearing. If the appellant makes such a request, the Board shall grant the request and notify the appellant of the change in method of the hearing.
(e) Notification of scheduling of hearing. The Board will notify the appellant and his or her representative of the scheduled time and location for the requested hearing not less than 30 days prior to the hearing date. This time limitation does not apply to hearings which have been rescheduled due to a postponement requested by an appellant, or on his or her behalf, or due to the prior failure of an appellant to appear at a scheduled hearing before the Board with good cause. The right to notice at least 30 days in advance will be deemed to have been waived if an appellant accepts an earlier hearing date due to the cancellation of another previously scheduled hearing.
§ 20.603 Rule 603. Scheduling and notice of hearings conducted by the Board of Veterans’ Appeals at Department of Veterans Affairs field facilities in a legacy appeal.
(a) General. Hearings may be conducted by a Member or Members of the Board during prescheduled visits to Department of Veterans Affairs facilities having adequate physical resources and personnel for the support of such hearings. Subject to paragraph (f) of this section, the hearings will be scheduled for each area served by a regional office in accordance with the place of each case on the Board’s docket, established under § 20.902, relative to other cases for which hearings are scheduled to be held within that area.
(b) Notification of hearing. When a hearing at a Department of Veterans Affairs field facility is scheduled, the person requesting it will be notified of its time and place, and of the fact that the Government may not assume any expense incurred by the appellant, the representative, or witnesses attending the hearing.
(c) Requests for changes in hearing dates. Requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the Board. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. If good cause is not shown, the appellant and his or her representative will be promptly notified and given an opportunity to appear at the hearing as previously scheduled. If the appellant elects not to appear at the prescheduled date, the request for a hearing will be considered to have been withdrawn. In such cases, however, the record will be submitted for review by the Member who would have presided over the hearing. If the presiding Member determines that good cause has been shown, the hearing will be rescheduled for the next available hearing date after the contingency which gave rise to the request for postponement has been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear for a scheduled hearing must be in writing, must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted. Such motions must be filed with: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. Whether good cause for such failure to appear and the impossibility of timely requesting postponement have been established will be determined by the Member who would have presided over the hearing. If good cause and the impossibility of timely requesting postponement are shown, the hearing will be rescheduled for the next available hearing date at the same facility after the appellant or his or her representative gives notice that the contingency which gave rise to the failure to appear has been removed.
(e) Withdrawal of hearing requests. A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. A request for a hearing may not be withdrawn by an appellant’s representative without the consent of the appellant. Notices of withdrawal must be submitted to the Board.
(f) Advancement of the case on the hearing docket. A hearing may be scheduled at a time earlier than would be provided for under paragraph (a) of this section upon written motion of the appellant or the representative. The same grounds for granting relief, motion filing procedures, and designation of authority to rule on the motion specified in Rule 902(c) (§ 20.902(c)) for advancing a case on the Board’s docket shall apply.
§ 20.604 Rule 604. Designation of Member or Members to conduct the hearing in a legacy appeal.
The Member or panel to whom a proceeding is assigned under Rule 106 (§ 20.106) shall conduct any hearing before the Board in connection with that proceeding. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman’s designee, shall designate one of the Members as the presiding Member. The Member or Members who conduct the hearing shall participate in making the final determination of the claim, subject to the exception in Rule 1004 (§ 20.1004) (relating to reconsideration of a decision).
§ 20.605 Rule 605. Procurement of additional evidence following a hearing in a legacy appeal.
If it appears during the course of a hearing that additional evidence would assist in the review of the questions at issue, the presiding Member may direct that the record be left open so that the appellant and his or her representative may obtain the desired evidence. The presiding Member will determine the period of time during which the record will stay open, considering the amount of time estimated by the appellant or representative as needed to obtain the evidence and other factors adduced during the hearing. Ordinarily, the period will not exceed 60 days, and will be as short as possible in order that appellate consideration of the case not be unnecessarily delayed.
§§ 20.606-20.699 [Reserved]
Subpart H – Hearings on Appeal
§ 20.700 Rule 700. General.
(a) Right to a hearing. A hearing on appeal will be granted if an appellant, or an appellant’s representative acting on his or her behalf, expresses a desire to testify before the Board. An appellant is limited to one Board hearing following the filing of a Notice of Disagreement with a decision of the agency of original jurisdiction. Requests for additional Board hearings may be granted for good cause shown.
(b) Purpose of hearing. The purpose of a hearing is to receive argument and testimony relevant and material to the appellate issue or issues. It is contemplated that the appellant and witnesses, if any, will be present. A hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. Such argument may be submitted in the form of a written brief. Requests for appearances by representatives alone to personally present argument to Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member assigned to conduct the hearing.
(c) Nonadversarial proceedings. Hearings conducted by the Board are ex parte in nature and nonadversarial. Parties to the hearing will be permitted to ask questions, including follow-up questions, of all witnesses but cross-examination will not be permitted. Proceedings will not be limited by legal rules of evidence, but reasonable bounds of relevancy and materiality will be maintained. The presiding Member may set reasonable time limits for the presentation of argument and may exclude documentary evidence, testimony, and/or argument which is not relevant or material to the issue, or issues, being considered or which is unduly repetitious.
§ 20.701 Rule 701. Who may present oral argument.
Only the appellant and/or his or her authorized representative may appear and present argument in support of an appeal. At the request of an appellant, a Veterans Benefits Counselor of the Department of Veterans Affairs may present the appeal at a hearing before the Board of Veterans’ Appeals.
§ 20.702 Rule 702. Methods by which hearings are conducted.
A hearing on appeal before the Board may be held by one of the following methods:
(a) In person at the Board’s principal location in Washington, DC, or
(b) By electronic hearing, through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility.
§ 20.703 Rule 703. When a hearing before the Board of Veterans’ Appeals may be requested; procedure for requesting a change in method of hearing.
(a) How to request a hearing. An appellant, or an appellant’s representative, may request a hearing before the Board when submitting the Notice of Disagreement, or when requesting to modify the Notice of Disagreement, as provided in Rule 202 (§ 20.202). Requests for such hearings at any other time will be rejected.
(b) Board’s determination of method of hearing. Following the receipt of a request for a hearing, the Board shall determine, for purposes of scheduling the hearing for the earliest practical date, whether a hearing before the Board will be held at its principal location or by picture and voice transmission at a facility of the Department located within the area served by a regional office of the Department.
(c) Notification of method of hearing. The Board will notify the appellant and his or her representative of the method of a hearing before the Board.
(d) How to request a change in method of hearing. If an appellant declines to participate in the method of hearing selected by the Board, the appellant’s opportunity to participate in a hearing before the Board shall not be affected. Upon notification of the method of the hearing requested pursuant to paragraph (c) of this section, an appellant may make one request for a different method of the requested hearing. If the appellant makes such a request, the Board shall grant the request and notify the appellant of the change in method of the hearing.
(e) Notification of scheduling of hearing. The Board will notify the appellant and his or her representative of the scheduled time and location for the requested hearing not less than 30 days prior to the hearing date. This time limitation does not apply to hearings which have been rescheduled due to a postponement requested by an appellant, or on his or her behalf, or due to the prior failure of an appellant to appear at a scheduled hearing before the Board of Veterans’ Appeals with good cause. The right to notice at least 30 days in advance will be deemed to have been waived if an appellant accepts an earlier hearing date due to the cancellation of another previously scheduled hearing.
§ 20.704 Rule 704. Scheduling and notice of hearings conducted by the Board of Veterans’ Appeals.
(a)(1) General. To the extent that officials scheduling hearings for the Board determine that necessary physical resources and qualified personnel are available, hearings will be scheduled at the convenience of appellants and their representatives, with consideration of the travel distance involved. Subject to paragraph (f) of this section, electronic hearings will be scheduled for each area served by a regional office in accordance with the place of each case on the Board’s docket, established under Rule 801 (§ 20.801) for appeals and under Rule 902 (§ 20.902) for legacy appeals, relative to other cases for which hearings are scheduled to be held within that area.
(2) Special provisions for legacy appeals. The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings under paragraph (a)(3) of Rule 601 (§ 20.601(a)(3)) are contained in Rule 603 (§ 20.603).
(b) Notification of hearing. When a hearing is scheduled, the person requesting it will be notified of its time and place, and of the fact that the Government may not assume any expense incurred by the appellant, the representative or witnesses attending the hearing.
(c) Requests for changes in hearing dates. Requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the Board. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. If good cause is not shown, the appellant and his or her representative will be promptly notified and given an opportunity to appear at the hearing as previously scheduled. If the appellant elects not to appear at the prescheduled date, the request for a hearing will be considered to have been withdrawn. In such cases, however, the record will be submitted for review by the Member who would have presided over the hearing. If the presiding Member determines that good cause has been shown, the hearing will be rescheduled for the next available hearing date after the contingency which gave rise to the request for postponement has been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with good cause and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. A motion for a new hearing date following a failure to appear for a scheduled hearing must be in writing, must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted. Such motions must be filed with: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. Whether good cause for such failure to appear and the impossibility of timely requesting postponement have been established will be determined by the Member who would have presided over the hearing. If good cause and the impossibility of timely requesting postponement are shown, the hearing will be rescheduled for the next available hearing date at the same facility after the appellant or his or her representative gives notice that the contingency which gave rise to the failure to appear has been removed.
(e) Withdrawal of hearing requests. A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. A request for a hearing may not be withdrawn by an appellant’s representative without the consent of the appellant. Notices of withdrawal must be submitted to the Board.
(f) Advancement of the case on the hearing docket. A hearing may be scheduled at a time earlier than would be provided for under paragraph (a) of this section upon written motion of the appellant or the representative. The same grounds for granting relief, motion filing procedures, and designation of authority to rule on the motion specified in Rule 902(c) (§ 20.902(c)) for advancing a case on the Board’s docket shall apply.
§ 20.705 Rule 705. Functions of the presiding Member.
(a) General. The presiding Member is responsible for the conduct of a Board hearing in accordance with the provisions of subparts G and H of this part.
(b) Duties. The duties of the presiding Member include, but are not limited to, any of the following:
(1) Conducting a prehearing conference, pursuant to § 20.707;
(2) Ruling on questions of procedure;
(3) Administering the oath or affirmation;
(4) Ensuring that the course of the Board hearing remains relevant to the issue or issues on appeal;
(5) Setting reasonable time limits for the presentation of argument;
(6) Prohibiting cross-examination of the appellant and any witnesses;
(7) Determining whether documentary evidence, testimony, and/or argument is relevant or material to the issue or issues being considered and not unduly repetitious;
(8) Terminating a Board hearing or directing that an offending party, representative, witness, or observer leave the hearing if that party persists or engages in disruptive or threatening behavior;
(9) Disallowing or halting the use of personal recording equipment being used by an appellant or representative if it becomes disruptive to the hearing; and
(10) Taking any other steps necessary to maintain good order and decorum.
(c) Ruling on motions. The presiding Member has the authority to rule on any Board hearing-related motion.
§ 20.706 Rule 706. Designation of Member or Members to conduct the hearing.
Hearings will be conducted by a Member or panel of Members of the Board. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman’s designee, shall designate one of the Members as the presiding Member.
§ 20.707 Rule 707. Prehearing conference.
An appellant’s authorized representative may request a prehearing conference with the presiding Member of a hearing to clarify the issues to be considered at a hearing on appeal, obtain rulings on the admissibility of evidence, develop stipulations of fact, establish the length of argument which will be permitted, or take other steps which will make the hearing itself more efficient and productive.
§ 20.708 Rule 708. Witness at hearings.
The testimony of witnesses, including appellants, will be heard. All testimony must be given under oath or affirmation. Oath or affirmation is not required for the sole purpose of presenting contentions and argument.
§ 20.709 Rule 709. Subpoenas.
(a) General. An appellant, or his or her representative, may arrange for the production of any tangible evidence or the voluntary appearance of any witnesses desired. When necessary evidence cannot be obtained in any other reasonable way, the appellant, or his or her representative, may move that a subpoena be issued to compel the attendance of witnesses residing within 100 miles of the place where a hearing on appeal is to be held and/or to compel the production of tangible evidence. A subpoena will not be issued to compel the attendance of Department of Veterans Affairs adjudicatory personnel.
(b) Contents of motion for subpoena. The motion for a subpoena must be in writing, must clearly show the name and address of each witness to be subpoenaed, must clearly identify all documentary or other tangible evidence to be produced, and must explain why the attendance of the witness and/or the production of the tangible evidence cannot be obtained without a subpoena.
(c) Where filed. Motions for a subpoena must be filed with the Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(d) When motion for subpoena is to be filed in cases involving a hearing on appeal. Motions for the issuance of a subpoena for the attendance of a witness, or the production of documents or other tangible evidence, at a hearing on appeal must be filed not later than 30 days prior to the hearing date.
(e) Ruling on motion for subpoena – (1) To whom assigned. The ruling on the motion will be made by the Member or panel of Members to whom the case is assigned. Where the case has not been assigned, the Chairman, or the Chairman’s designee, will assign the case to a Member or panel who will then rule on the motion.
(2) Procedure. If the motion is denied, the Member(s) ruling on the motion will issue an order to that effect which sets forth the reasons for the denial and will send copies to the moving party and his or her representative, if any. Granting the motion will be signified by completion of a VA Form 0714, “Subpoena,” if attendance of a witness is required, and/or VA Form 0713, “Subpoena Duces Tecum,” if production of tangible evidence is required. The completed form shall be signed by the Member ruling on the motion, or, where applicable, by any panel Member on behalf of the panel ruling on the motion, and served in accordance with paragraph (g) of this section.
(f) Fees. Any person who is required to attend a hearing as a witness shall be allowed and paid the same fees and mileage as are paid witnesses in the district courts of the United States. A subpoena for a witness will not be issued or served unless the party on whose behalf the subpoena is issued submits a check in an amount equal to the fee for one day’s attendance and the mileage allowed by law, made payable to the witness, as an attachment to the motion for the subpoena. Except for checks on the business accounts of attorneys-at-law, agents, and recognized service organizations, such checks must be in the form of certified checks or cashiers checks.
(g) Service of subpoenas. The Board will serve the subpoena by certified mail, return receipt requested. The check for fees and mileage described in paragraph (f) of this section shall be mailed with the subpoena. The receipt, which must bear the signature of the witness or of the custodian of the tangible evidence, and a copy of the subpoena will be filed in the claims folder, loan guaranty folder, or other applicable Department of Veterans Affairs records folder.
(h) Motion to quash or modify subpoena – (1) Filing procedure. Upon written motion of the party securing the subpoena, or of the person subpoenaed, the Board may quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown. Relief may include, but is not limited to, requiring the party who secured the subpoena to advance the reasonable cost of producing books, papers, or other tangible evidence. The motion must specify the relief sought and the reasons for requesting relief. Such motions must be filed at the address specified in paragraph (c) of this section within 10 days after mailing of the subpoena or the time specified in the subpoena for compliance, whichever is less. The motion may be accompanied by such supporting evidence as the moving party may choose to submit. It must be accompanied by a declaration showing:
(i) That a copy of the motion, and any attachments thereto, were mailed to the party who secured the subpoena, or the person subpoenaed, as applicable;
(ii) The date of mailing; and
(iii) The address to which the copy was mailed.
(2) Response. Not later than 10 days after the date that the motion was mailed to the responding party, that party may file a response to the motion at the address specified in paragraph (c) of this section. The response may be accompanied by such supporting evidence as the responding party may choose to submit. It must be accompanied by a declaration showing:
(i) That a copy of the response, and any attachments thereto, were mailed to the moving party;
(ii) The date of mailing; and
(iii) The address to which the copy was mailed. If the subpoena involves testimony or the production of tangible evidence at a hearing before the Board and less than 30 days remain before the scheduled hearing date at the time the response is received by the Board, the Board may reschedule the hearing to permit disposition of the motion.
(3) Ruling on the motion. The Member or panel to whom the case is assigned will issue an order disposing of the motion. Such order shall set forth the reasons for which a motion is either granted or denied. The order will be mailed to all parties to the motion. Where applicable, an order quashing a subpoena will require refund of any sum advanced for fees and mileage.
(i) Disobedience. In case of disobedience to a subpoena issued by the Board, the Board will take such steps as may be necessary to invoke the aid of the appropriate district court of the United States in requiring the attendance of the witness and/or the production of the tangible evidence subpoenaed. A failure to obey the order of such a court may be punished by the court as a contempt thereof.
§ 20.710 Rule 710. Expenses of appellants, representatives, and witnesses incident to hearings not reimbursable by the Government.
No expenses incurred by an appellant, representative, or witness incident to attendance at a hearing may be paid by the Government.
§ 20.711 Rule 711. Hearings in simultaneously contested claims.
(a) General. If a hearing is scheduled for any party to a simultaneously contested claim, the other contesting claimants and their representatives, if any, will be notified and afforded an opportunity to be present. The appellant will be allowed to present opening testimony and argument. Thereafter, any other contesting party who wishes to do so may present testimony and argument. The appellant will then be allowed an opportunity to present testimony and argument in rebuttal. Cross-examination will not be allowed.
(b) Requests for changes in hearing dates. (1) General. Except as described in paragraphs (b)(2) and (3) of this section, any party to a simultaneously contested claim may request a change in a hearing date in accordance with the provisions of Rule 704, paragraph (c) (§ 20.704(c)).
(2)(i) A request under Rule 704, paragraph (c) must be made within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier.
(ii) In order to obtain a new hearing date under the provisions of Rule 704, paragraph (c) (§ 20.704(c)), the consent of all other interested parties must be obtained and submitted with the request for a new hearing date. If such consent is not obtained, the date of the hearing will become fixed. After a hearing date has become fixed, an extension of time for appearance at a hearing will be granted only for good cause, with due consideration of the interests of other parties. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. The motion for a new hearing date must be in writing and must explain why a new hearing date is necessary. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. Whether good cause for establishing a new hearing date has been shown will be determined by the presiding Member assigned to conduct the hearing.
(3) A copy of any motion for a new hearing date required by these rules must be mailed to all other interested parties by certified mail, return receipt requested. The receipts, which must bear the signatures of the other interested parties, and a letter explaining that they relate to the motion for a new hearing date and containing the applicable Department of Veterans Affairs file number must be filed at the same address where the motion was filed as proof of service of the motion. Each interested party will be allowed a period of 10 days from the date that the copy of the motion was received by that party to file written argument in response to the motion.
§ 20.712 Rule 712. Record of hearing.
(a) General. All Board hearings will be recorded. The Board will prepare a written transcript for each Board hearing conducted. The transcript will be the official record of the hearing and will be incorporated as a part of the record on appeal. The Board will not accept alternate transcript versions prepared by the appellant or representative.
(b) Hearing recording. The recording of the Board hearing will be retained for a period of 12 months following the date of the Board hearing as a duplicate record of the proceeding.
(c) Copy of written transcript. If the appellant or representative requests a copy of the written transcript in accordance with § 1.577 of this chapter, the Board will furnish one copy to the appellant or representative.
§ 20.713 Rule 713. Recording of hearing by appellant or representative.
An appellant or representative may record the hearing with his or her own equipment. Filming, videotaping or televising the hearing may only be authorized when prior written consent is obtained from all appellants and contesting claimants, if any, and made a matter of record. In no event will such additional equipment be used if it interferes with the conduct of the hearing or the official recording apparatus. In all such situations, advance arrangements must be made with the Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
§ 20.714 Rule 714. Correction of hearing transcripts.
If an appellant wishes to seek correction of perceived errors in a hearing transcript, the appellant or his or her representative should move for correction of the hearing transcript within 30 days after the date that the transcript is mailed to the appellant. The motion must be in writing and must specify the error, or errors, in the transcript and the correct wording to be substituted. The motion must be filed with the Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. The ruling on the motion will be made by the presiding Member of the hearing.
§ 20.715 Rule 715. Loss of hearing recordings or transcripts – request for new hearing.
(a) Notification. (1) The Board must notify the appellant and his or her representative in writing in the event the Board discovers that a Board hearing has not been recorded in whole or in part due to equipment failure or other cause, or the official transcript of the hearing is lost or destroyed and the recording upon which it was based is no longer available. The notice must provide the appellant with a choice of either of the following options:
(i) Appear at a new Board hearing, pursuant to Rules 703 and 704 (§§ 20.703 and 20.704) for appeals or Rules 602 and 603 (§§ 20.602 and 20.603) for legacy appeals, as defined in § 19.2 of this chapter; or
(ii) Have the Board proceed to appellate review of the appeal based on the evidence of record.
(2) The notice will inform the appellant that he or she has a period of 30 days to respond to the notice. If the appellant does not respond by requesting a new hearing within 30 days from the date of the mailing of the notice, then the Board will decide the appeal on the basis of the evidence of record. A request for a new Board hearing will not be accepted once the Board has issued a decision on the appeal.
(b) Board decision issued prior to a loss of the recording or transcript. The Board will not accept a request for a new Board hearing under this section if a Board decision was issued on an appeal prior to the loss of the recording or transcript of a Board hearing, and the Board decision considered testimony provided at that Board hearing.
§§ 20.716-20.799 [Reserved]
Subpart I – Appeals Processing
§ 20.800 Rule 800. Order of consideration of appeals.
(a) Docketing of appeals. (1) Applications for review on appeal are docketed in the order in which they are received on the following dockets:
(i) A docket for appeals in which an appellant does not request a hearing or an opportunity to submit additional evidence on the Notice of Disagreement;
(ii) A docket for appeals in which the appellant does not request a hearing but does request an opportunity to submit additional evidence on the Notice of Disagreement; and
(iii) A docket for appeals in which the appellant requests a hearing on the Notice of Disagreement.
(2) An appeal may be moved from one docket to another only when the Notice of Disagreement has been modified pursuant to Rule 202, paragraph (c)(3) (§ 20.202(c)(3)). The request to modify the Notice of Disagreement must reflect that the appellant requests the option listed in § 20.202(b) that corresponds to the docket to which the appeal will be moved. An appeal that is moved from one docket to another will retain its original docket date.
(b) Except as otherwise provided, each appeal will be decided in the order in which it is entered on the docket to which it is assigned.
(c) Advancement on the docket – (1) Grounds for advancement. A case may be advanced on the docket to which it is assigned on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case, administrative necessity, or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.
(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, a substitute appellant, or a fiduciary appointed to receive VA benefits on an individual’s behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with the Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual Member or panel of Members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board’s decision when rendered.
(d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims for appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s docket.
(e) Case remanded to correct duty to assist error and new Notice of Disagreement filed after readjudication. A case will not be returned to the Board following the agency of original jurisdiction’s readjudication of an appeal previously remanded by the Board pursuant to Rule 802, paragraph (c) (§ 20.802(c)), unless the claimant files a new Notice of Disagreement. Such cases will be docketed in the order in which the most recent Notice of Disagreement was received.
(f) Cases involving substitution. A case returned to the Board following the grant of a substitution request or pursuant to an appeal of a denial of a substitution request assumes the same place on the docket held by the deceased appellant at the time of his or her death. If the deceased appellant’s case was advanced on the docket prior to his or her death pursuant to paragraph (c) of this section, the substitute will receive the benefit of the advanced placement.
(g) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.
§ 20.801 Rule 801. The decision.
(a) General. Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence submitted pursuant to Rules 302 and 303 (§§ 20.302 and 20.303). Any findings favorable to the claimant as identified by the agency of original jurisdiction in notification of a decision or in a prior Board decision on an issue on appeal are binding on all agency of original jurisdiction and Board of Veterans’ Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, findings means conclusions on questions of fact and application of law to facts made by an adjudicator concerning the issue under review.
(b) Content. The decision of the Board will be in writing and will set forth specifically the issue or issues under appellate consideration. Except with respect to appeals which are dismissed because an appellant seeking nonmonetary benefits has died while the appeal was pending, the decision will also include:
(1) Findings of fact and conclusions of law on all material issues of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) A general statement reflecting whether any evidence was received at a time when not permitted under subpart D, and informing the appellant that any such evidence was not considered by the Board and of the options available to have that evidence reviewed by the Department of Veterans Affairs; and
(4) An order granting or denying the benefit or benefits sought on appeal, dismissing the appeal, or remanding the issue or issues as described in Rule 802 (§ 20.802).
(c) Panel decision. A decision by a panel of Members will be by a majority vote of the panel Members.
§ 20.802 Rule 802. Remand for correction of error.
(a) Remand. Unless the issue or issues can be granted in full, the Board shall remand the appeal to the agency of original jurisdiction for correction of an error on the part of the agency of original jurisdiction to satisfy its duties under 38 U.S.C. 5103A, if the error occurred prior to the date of the agency of original jurisdiction decision on appeal. The Board may remand for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant’s claim. The remand must specify the action to be taken by the agency of original jurisdiction.
(b) Advisory Medical Opinion. If the Board determines that an error as described in paragraph (a) of this section may only be corrected by obtaining an advisory medical opinion from a medical expert who is not an employee of the Department of Veterans Affairs, the Board shall remand the case to the agency of original jurisdiction to obtain such an opinion, specifying the questions to be posed to the independent medical expert providing the advisory medical opinion.
(c) Action by agency of original jurisdiction after receipt of remand. After correction of any error identified in the Board’s remand, the agency of original jurisdiction must readjudicate the claim and provide notice of the decision under 38 U.S.C. 5104, to include notice under 38 U.S.C. 5104C of a claimant’s options for further review of the agency of original jurisdiction’s decision. The agency of original jurisdiction must provide for the expeditious treatment of any claim that is remanded by the Board.
§ 20.803 Rule 803. Content of Board decision, remand, or order in simultaneously contested claims.
The content of the Board’s decision, remand, or order in appeals involving a simultaneously contested claim will be limited to information that directly affects the issues involved in the contested claim. Appellate issues that do not involve all of the contesting parties will be addressed in one or more separate written decisions, remands, or orders that will be furnished only to the appellants concerned and their representatives, if any.
§ 20.804 Rule 804. Opinions of the General Counsel.
(a) The Board may obtain an opinion from the General Counsel of the Department of Veterans Affairs on legal questions involved in the consideration of an appeal.
(b) Filing of requests for the procurement of opinions. The appellant or representative may request that the Board obtain an opinion under this section. Such request must be in writing and will be granted upon a showing of good cause, such as the identification of a complex or controversial legal issue involved in the appeal which warrants such an opinion.
(c) Notification of evidence to be considered by the Board and opportunity for response. If the Board requests an opinion pursuant to this section, it will notify the appellant and his or her representative, if any. When the Board receives the opinion, it will furnish a copy of the opinion to the appellant, subject to the limitations provided in 38 U.S.C. 5701(b)(1), and to the appellant’s representative, if any. A period of 60 days from the date the Board furnishes a copy of the opinion will be allowed for response, which may include the submission of relevant evidence or argument. The date the Board furnishes a copy will be presumed to be the same as the date of the letter or memorandum that accompanies the copy of the opinion for purposes of determining whether a response was timely filed.
(d) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending.
§§ 20.805-20.899 [Reserved]
Subpart J – Action by the Board in Legacy Appeals
§ 20.900 Rule 900. Applicability.
The provisions in this subpart apply to Board decisions and remands rendered in legacy appeals, as defined in § 19.2 of this chapter.
§ 20.901 Rule 901. Submission of additional evidence after initiation of appeal.
Subject to the limitations set forth in Rule 1304 (§ 20.1304 of this part), an appellant may submit additional evidence, or information as to the availability of additional evidence, after initiating an appeal. The provisions of this section do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
§ 20.902 Rule 902. Order of consideration of appeals.
(a) Docketing of appeals. Applications for review on appeal are docketed in the order in which they are received.
(1) A case returned to the Board following action pursuant to a remand assumes its original place on the docket.
(2) A case returned to the Board following the grant of a substitution request or pursuant to an appeal of a denial of a substitution request assumes the same place on the docket held by the deceased appellant at the time of his or her death. Pursuant to paragraph (c) of this section, if the deceased appellant’s case was advanced on the docket prior to his or her death, the substitute will receive the benefit of the advanced placement.
(b) Appeals considered in docket order. Except as otherwise provided in this Rule, appeals are considered in the order in which they are entered on the docket.
(c) Advancement on the docket – (1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case, administrative necessity, or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.
(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, a substitute appellant, or a fiduciary appointed to receive VA benefits on an individual’s behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual member or panel of members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board’s decision when rendered.
(d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s docket.
(e) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.
§ 20.903 Rule 903. The decision.
(a) Decisions based on entire record. The appellant will not be presumed to be in agreement with any statement of fact contained in a Statement of the Case to which no exception is taken. Decisions of the Board are based on a review of the entire record.
(b) Content. The decision of the Board will be in writing and will set forth specifically the issue or issues under appellate consideration. Except with respect to issues remanded to the agency of original jurisdiction for further development of the case and appeals which are dismissed because the issue has been resolved by administrative action or because an appellant seeking nonmonetary benefits has died while the appeal was pending, the decision will also include findings of fact and conclusions of law on all material issues of fact and law presented on the record, the reasons or bases for those findings and conclusions, and an order granting or denying the benefit or benefits sought on appeal or dismissing the appeal.
(c) A decision by a panel of Members will be by a majority vote of the panel Members.
§ 20.904 Rule 904. Remand or referral for further action.
(a) Remand. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge or panel of Veterans Law Judges shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken.
(b) Referral. The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction, except for claims over which the Board has original jurisdiction.
(c) Remand for a Statement of the Case. In cases before the Board in which a claimant has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case in accordance with the provisions of part 19, subpart B of this chapter. A remand for a Statement of the Case is not required if the claimant, consistent with the withdrawal requirements of § 19.55 of this chapter, withdraws the Notice of Disagreement.
(d) Exceptions. A remand or referral to the agency of original jurisdiction is not necessary for any of the following purposes:
(1) Clarifying a procedural matter before the Board, including the appellant’s choice of representative before the Board, the issues on appeal, or requests for a hearing before the Board;
(2) Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions;
(3) Reviewing additional evidence received by the Board, if, pursuant to Rule 1305 (§ 20.1305(c) of this part), the appellant or the appellant’s representative waives the right to initial consideration by the agency of original jurisdiction, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal;
(4) Requesting an opinion under Rule 906 (§ 20.906 of this part);
(5) Supplementing the record with a recognized medical treatise; or
(6) Considering a matter over which the Board has original jurisdiction.
§ 20.905 Rule 905. Content of Board decision, remand, or order in simultaneously contested claims.
The content of the Board’s decision, remand, or order in appeals involving a simultaneously contested claim will be limited to information that directly affects the issues involved in the contested claim. Appellate issues that do not involve all of the contesting parties will be addressed in one or more separate written decisions, remands, or orders that will be furnished only to the appellants concerned and their representatives, if any.
§ 20.906 Rule 906. Medical opinions and opinions of the General Counsel.
(a) Opinion from the Veterans Health Administration. The Board may obtain a medical opinion from an appropriate health care professional in the Veterans Health Administration of the Department of Veterans Affairs on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal.
(b) Joint Pathology Center opinions. The Board may refer pathologic material to the Joint Pathology Center and request an opinion based on that material.
(c) Opinion of the General Counsel. The Board may obtain an opinion from the General Counsel of the Department of Veterans Affairs on legal questions involved in the consideration of an appeal.
(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion.
(e) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending.
§ 20.907 Rule 907. Filing of requests for the procurement of opinions.
The appellant or representative may request that the Board obtain an opinion under Rule 906 (§ 20.906). The request must be in writing. It will be granted upon a showing of good cause, such as the identification of a complex or controversial medical or legal issue involved in the appeal which warrants such an opinion.
§ 20.908 Rule 908. Notification of evidence to be considered by the Board and opportunity for response.
(a) If the Board obtains a legal or medical opinion. If the Board requests an opinion pursuant to Rule 906 (§ 20.906), the Board will notify the appellant and his or her representative, if any. When the Board receives the opinion, it will furnish a copy of the opinion to the appellant, subject to the limitations provided in 38 U.S.C. 5701(b)(1), and to the appellant’s representative, if any. A period of 60 days from the date the Board furnishes a copy of the opinion will be allowed for response, which may include the submission of relevant evidence or argument. The date the Board furnishes a copy will be presumed to be the same as the date of the letter or memorandum that accompanies the copy of the opinion for purposes of determining whether a response was timely filed.
(b) If the Board supplements the record with a recognized medical treatise – (1) General. If, pursuant to Rule 904(d)(5) (§ 20.904(d)(5)), the Board supplements the record with a recognized medical treatise, the Board will notify the appellant and his or her representative, if any, that the Board will consider such recognized medical treatise in the adjudication of the appeal. The notice from the Board will contain a copy of the relevant portions of the recognized medical treatise. The appellant will be given 60 days after the date of the notice described in this section to file a response, which may include the submission of relevant evidence or argument. The date the Board gives the notice will be presumed to be the same as the date of the notice letter for purposes of determining whether a response was timely filed.
(2) Exception. The notice described in paragraph (b)(1) of this section is not required if the Board uses a recognized medical treatise or medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board’s disposition of the appeal.
§§ 20.909-20.999 [Reserved]
Subpart K – Vacatur and Reconsideration
§ 20.1000 Rule 1000. Vacating a decision.
An appellate decision may be vacated by the Board of Veterans’ Appeals at any time upon request of the appellant or his or her representative, or on the Board’s own motion, on the following grounds:
(a) Denial of due process. Examples of circumstances in which denial of due process of law will be conceded are:
(1) When the appellant was denied his or her right to representation through action or inaction by Department of Veterans Affairs or Board of Veterans’ Appeals personnel,
(2) When there was a prejudicial failure to afford the appellant a personal hearing. (Where there was a failure to honor a request for a hearing and a hearing is subsequently scheduled, but the appellant fails to appear, the decision will not be vacated.), and
(3) For a legacy appeal, as defined in § 19.2 of this chapter, when a Statement of the Case or required Supplemental Statement of the Case was not provided.
(b) Allowance of benefits based on false or fraudulent evidence. Where it is determined on reconsideration that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant, the prior decision will be vacated only with respect to the issue or issues to which, within the judgment of the Board, the false or fraudulent evidence was material.
§ 20.1001 Rule 1001. When reconsideration is accorded.
Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans’ Appeals on motion by the appellant or his or her representative or on the Board’s own motion:
(a) Upon allegation of obvious error of fact or law;
(b) Upon discovery of new evidence in the form of relevant records or reports of the service department concerned; or
(c) Upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant.
§ 20.1002 Rule 1002. Filing and disposition of motion for reconsideration.
(a) Application requirements. A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans’ Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans’ Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.
(b) Filing of motion for reconsideration. A motion for reconsideration of a prior Board of Veterans’ Appeals decision may be filed at any time. Such motions must be filed at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(c) Disposition. The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows:
(1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion.
(2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with Rule 1004 (§ 20.1004).
§ 20.1003 Rule 1003. Hearings on reconsideration.
After a motion for reconsideration has been allowed, a hearing will be granted if the issue under reconsideration was considered on a docket for cases that may include a hearing, and an appellant requests a hearing before the Board. The hearing will be held by a Member or Members assigned to the reconsideration panel. A hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. Such argument should be submitted in the form of a written brief. Requests for appearances by representatives alone to personally present argument to a Member or panel of Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member.
§ 20.1004 Rule 1004. Reconsideration panel.
(a) Assignment of Members. When a motion for reconsideration is allowed, the Chairman will assign a panel of three or more Members of the Board, which may include the Chairman, to conduct the reconsideration.
(b) Number of Members constituting a reconsideration panel. In the case of a matter originally decided by a single Member of the Board, the case shall be referred to a panel of three Members of the Board. In the case of a matter originally decided by a panel of Members of the Board, the case shall be referred to an enlarged panel, consisting of three or more Members than the original panel. In order to obtain a majority opinion, the number of Members assigned to a reconsideration panel may be increased in successive increments of three.
(c) Members included in the reconsideration panel. The reconsideration panel may not include any Member who participated in the decision that is being reconsidered. Additional Members will be assigned in accordance with paragraph (b) of this section.
§§ 20.1005-20.1099 [Reserved]
Subpart L – Finality
§ 20.1100 Rule 1100. Finality of decisions of the Board.
(a) General. All decisions of the Board will be stamped with the date of mailing on the face of the decision. Unless the Chairman of the Board orders reconsideration, and with the exception of matters listed in paragraph (b) of this section, all Board decisions are final on the date stamped on the face of the decision. With the exception of matters listed in paragraph (b) of this section, the decision rendered by the reconsideration Panel in an appeal in which the Chairman has ordered reconsideration is final.
(b) Exceptions. Final Board decisions are not subject to review except as provided in 38 U.S.C. 1975 and 1984 and 38 U.S.C. chapters 37 and 72. A remand is in the nature of a preliminary order and does not constitute a final decision of the Board.
§ 20.1101 Rule 1101. [Reserved]
§ 20.1102 Rule 1102. Harmless error.
An error or defect in any decision by the Board of Veterans’ Appeals which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating or reversing such decision.
§ 20.1103 Rule 1103. Finality of determinations of the agency of original jurisdiction where issue is not appealed.
A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in § 19.52 of this chapter. If no Notice of Disagreement is filed as prescribed in subpart C of this part, the claim shall not thereafter be readjudicated or allowed, except as provided by 38 U.S.C. 5104B or 5108, or by regulation.
§ 20.1104 Rule 1104. Finality of determinations of the agency of original jurisdiction affirmed on appeal.
When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans’ Appeals, such determination is subsumed by the final appellate decision.
§ 20.1105 Rule 1105. Supplemental claim after promulgation of appellate decision.
(a) After an appellate decision has been promulgated on a claim, a claimant may file a supplemental claim with the agency of original jurisdiction by submitting the prescribed form with new and relevant evidence related to the previously adjudicated claim as set forth in § 3.2601 of this chapter, except in cases involving simultaneously contested claims under Subpart E of this part.
(b) Legacy appeals pending on the effective date. For legacy appeals as defined in § 19.2 of this chapter, where prior to the effective date described in Rule 4 (§ 20.4), an appellant requested that a claim be reopened after an appellate decision has been promulgated and submitted evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. An adverse determination as to either question is appealable.
§ 20.1106 Rule 1106. Claim for death benefits by survivor – prior unfavorable decisions during veteran’s lifetime.
Except with respect to benefits under the provisions of 38 U.S.C. 1311(a)(2) and 1318, and certain cases involving individuals whose Department of Veterans Affairs benefits have been forfeited for treason or for subversive activities under the provisions of 38 U.S.C. 6104 and 6105, issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran’s lifetime. Cases in which a person substitutes for a deceased veteran under 38 U.S.C. 5121A are not claims for death benefits and are not subject to this section. Cases in which a person substitutes for a deceased death benefits claimant under 38 U.S.C. 5121A are claims for death benefits subject to this section.
§§ 20.1107-20.1199 [Reserved]
Subpart M – Privacy Act
§ 20.1200 Rule 1200. Privacy Act request – appeal pending.
When a Privacy Act request is filed under § 1.577 of this chapter by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual’s appeal.
§ 20.1201 Rule 1201. Amendment of appellate decisions.
A request for amendment of an appellate decision under the Privacy Act (5 U.S.C. 552a) may be entertained. However, such a request may not be used in lieu of, or to circumvent, the procedures established under Rules 1001 through 1004 (§§ 20.1001-20.1004). The Board will review a request for correction of factual information set forth in a decision. Where the request to amend under the Privacy Act is an attempt to alter a judgment made by the Board and thereby replace the adjudicatory authority and functions of the Board, the request will be denied on the basis that the Act does not authorize a collateral attack upon that which has already been the subject of a decision of the Board. The denial will satisfy the procedural requirements of § 1.579 of this chapter. If otherwise appropriate, the request will be considered one for reconsideration under Rules 1001 through 1004 (§§ 20.1001-20.1004).
§§ 20.1202-20.1299 [Reserved]
Subpart N – Miscellaneous
In cases involving access to patient information relating to a Department of Veterans Affairs program for, or the treatment of, drug abuse, alcoholism, alcohol abuse, sickle cell anemia, or infection with the human immunodeficiency virus, also see 38 U.S.C. 7332.
§ 20.1300 Rule 1300. Removal of Board records.
No original record, paper, document or exhibit certified to the Board may be taken from the Board except as authorized by the Chairman or except as may be necessary to furnish copies or to transmit copies for other official purposes.
§ 20.1301 Rule 1301. Disclosure of information.
(a) Policy. It is the policy of the Board for the full text of appellate decisions to be disclosed to appellants. In those situations where disclosing certain information directly to the appellant would not be in conformance with 38 U.S.C. 5701, that information will be removed from the decision and the remaining text will be furnished to the appellant. A full-text appellate decision will be disclosed to the designated representative, however, unless the relationship between the appellant and representative is such (for example, a parent or spouse) that disclosure to the representative would be as harmful as if made to the appellant.
(b) Legacy appeals. For legacy appeals as defined in § 19.2 of this chapter, the policy described in paragraph (a) of this section is also applicable to Statements of the Case and supplemental Statements of the Case.
(c) Public availability of Board decisions – (1) Decisions issued on or after January 1, 1992. Decisions rendered by the Board of Veterans’ Appeals on or after January 1, 1992, are electronically available for public inspection and copying on the Board’s website. All personal identifiers are redacted from the decisions prior to publication. Specific decisions may be identified by a word and/or topic search, or by the Board docket number. Board decisions will continue to be provided in a widely-used format as future advances in technology occur.
(2) Decisions issued prior to January 1, 1992. Decisions rendered by the Board of Veterans’ Appeals prior to January 1, 1992, have been indexed to facilitate access to the contents of the decisions (BVA Index I-01-1). The index, which was published quarterly in microfiche form with an annual cumulation, is available for review at Department of Veterans Affairs regional offices and at the Board of Veterans’ Appeals in Washington, DC. Information on obtaining a microfiche copy of the index is also available from the Board. The index can be used to locate citations to decisions with issues similar to those of concern to an appellant. Each indexed decision has a locator number assigned to it. The manner in which the locator number is written depends upon the age of the decision. Decisions archived prior to late 1989 have a number such as 82-07-0001. Decisions archived at a later date have a number such as BVA-90-12345. This number must be used when requesting a copy of that decision. These requests must be directed to the Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
§ 20.1302 Rule 1302. Death of appellant during pendency of appeal before the Board.
(a) General. An appeal pending before the Board of Veterans’ Appeals when the appellant dies will be dismissed without prejudice. A person eligible for substitution under § 3.1010 of this chapter may file with the agency of original jurisdiction a request to substitute for the deceased appellant. If the agency of original jurisdiction grants the request to substitute, the case will assume its original place on the docket pursuant to Rule 800, paragraph (f) (§ 20.800(f)) or, for legacy appeals, Rule 902, paragraph (a)(2) (§ 20.902(a)(2)). If the agency of original jurisdiction denies the request to substitute and the person requesting to substitute appeals that decision to the Board, the appeal regarding eligibility to substitute will assume the same place on the docket as the original claim pursuant to Rule 800, paragraph (f) (§ 20.800(f)) or, for legacy appeals, Rule 902, paragraph (a)(2) (§ 20.902(a)(2)).
(b) Exception. (1) If a hearing request is pending pursuant to Rule 704 (§ 20.704) when the appellant dies, the agency of original jurisdiction may take action on a request to substitute without regard to whether the pending appeal has been dismissed by the Board, if the request is submitted in accordance with § 3.1010 of this chapter.
(2) If the agency of original jurisdiction grants the request to substitute, the Board of Veterans’ Appeals can then take the testimony of the substitute at a hearing held pursuant to Rules 700 through 717 (§§ 20.700 through 20.717). If the substitute desires representation at the hearing, he or she must appoint a representative prior to the hearing pursuant to § 14.631(g) of this chapter.
§ 20.1303 Rule 1303. Nonprecedential nature of Board decisions.
Although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.
§ 20.1304 Rule 1304. Request for a change in representation.
(a) Request for a change in representation within 90 days following Notice of Disagreement. An appellant and his or her representative, if any, will be granted a period of 90 days following receipt of a Notice of Disagreement, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a change in representation.
(b) Subsequent request for a change in representation. Following the expiration of the period described in paragraph (a) of this section, the Board will not accept a request for a change in representation except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; and withdrawal of an individual representative. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf) or the name of any substitute claimant or appellant; the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation could not be accomplished in a timely manner. Such motions must be filed at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. Depending upon the ruling on the motion, action will be taken as follows:
(1) Good cause not shown. If good cause is not shown, the request for a change in representation will be referred to the agency of original jurisdiction for association with the appellant’s file for any pending or subsequently received claims upon completion of the Board’s action on the pending appeal without action by the Board concerning the request.
(2) Good cause shown. If good cause is shown, the request for a change in representation will be honored.
§ 20.1305 Rule 1305. Procedures for legacy appellants to request a change in representation, personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans’ Appeals.
(a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records. An appellant in a legacy appeal, as defined in § 19.2 of this chapter, and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence should be submitted directly to the Board and not to the agency of original jurisdiction. If any such request or additional evidence is submitted to the agency of original jurisdiction instead of to the Board, the agency of original jurisdiction must forward it to the Board in accordance with § 19.37(b) of this chapter. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.
(b) Subsequent request for a change in representation, request for a personal hearing, or submission of additional evidence – (1) General rule. Subject to the exception in paragraph (b)(2) of this section, following the expiration of the period described in paragraph (a) of this section, the Board of Veterans’ Appeals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action with respect to these matters. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf) or the name of any substitute claimant or appellant; the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038. Depending upon the ruling on the motion, action will be taken as follows:
(i) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board’s action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal hearing granted as a result of a request so referred or any additional evidence so referred may be treated by that agency as the basis for a reopened claim, if appropriate. If the Board denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board’s decision, or testimony presented at a hearing resulting from a request for a hearing so referred, together with the evidence already of record, is subsequently found to be the basis of an allowance of that benefit, the effective date of the award will be the same as if the benefit had been granted by the Board as a result of the appeal which was pending at the time that the hearing request or additional evidence was received.
(ii) Good cause shown. If good cause is shown, the request for a change in representation or for a personal hearing will be honored. Any pertinent evidence submitted by the appellant or representative will be accepted, subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.
(2) Exception. The motion described in paragraph (b)(1) of this section is not required to submit evidence in response to a notice described in § 20.908.
(c) Consideration of additional evidence by the Board or by the agency of original jurisdiction. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a § 20.908 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.
(d) Simultaneously contested claims. In simultaneously contested claims, if pertinent evidence which directly affects payment, or potential payment, of the benefit sought is submitted by any claimant and is accepted by the Board under the provisions of this section, the substance of such evidence will be mailed to each of the other claimants who will then have 60 days from the date of mailing of notice of the new evidence within which to comment upon it and/or submit additional evidence in rebuttal. For matters over which the Board does not have original jurisdiction, a waiver of initial agency of original jurisdiction consideration of pertinent additional evidence received by the Board must be obtained from each claimant in accordance with paragraph (c) of this section. The date of mailing of the letter of notification of the new evidence will be presumed to be the same as the date of that letter for purposes of determining whether such comment or evidence in rebuttal was timely submitted. No further period will be provided for response to such comment or rebuttal evidence.
(e) Relationship to proceedings before the General Counsel to cancel accreditation or to review the reasonableness of fees and expenses. The provisions of paragraphs (a), (b), and (d) of this section allowing appellants to submit additional evidence do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
§§ 20.1306-20.1399 [Reserved]
Subpart O – Revision of Decisions on Grounds of Clear and Unmistakable Error
§ 20.1400 Rule 1400. Motions to revise Board decisions.
(a) Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision (as the term “party” is defined in Rule 1401(b) (§ 20.1401(b) of this part) in accordance with Rule 1404 (§ 20.1404 of this part).
(b) All final Board decisions are subject to revision under this subpart except:
(1) Decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and
(2) Decisions on issues which have subsequently been decided by a court of competent jurisdiction.
§ 20.1401 Rule 1401. Definitions.
(a) Issue. Unless otherwise specified, the term “issue” in this subpart means a matter upon which the Board made a final decision (other than a decision under this subpart). As used in the preceding sentence, a “final decision” is one which was appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision.
(b) Party. As used in this subpart, the term “party” means any party to the proceeding before the Board that resulted in the final Board decision which is the subject of a motion under this subpart.
§ 20.1402 Rule 1402. Inapplicability of other rules.
Motions filed under this subpart are not appeals and, except as otherwise provided, are not subject to the provisions of part 19 of this title or this part 20 which relate to the processing and disposition of appeals.
§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.
(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
(b) Record to be reviewed – (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
(2) Special rule for Board decisions on legacy appeals issued on or after July 21, 1992. For a Board decision on a legacy appeal as defined in § 19.2 of this chapter issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
(d) Examples of situations that are not clear and unmistakable error – (1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.
(2) Duty to assist. The Secretary’s failure to fulfill the duty to assist.
(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.
§ 20.1404 Rule 1404. Filing and pleading requirements; withdrawal.
(a) General. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party’s representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans’ Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
(b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
(c) Filing. A motion for revision of a decision based on clear and unmistakable error may be filed at any time. Such motions should be filed at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(d) Requests not filed at the Board. A request for revision transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f) (relating to requests for revision filed with the Secretary other than at the Board) shall be treated as if a motion had been filed pursuant to paragraph (c) of this section.
(e) Motions for reconsideration. A motion for reconsideration, as described in subpart K of this part, whenever filed, will not be considered a motion under this subpart.
(f) Withdrawal. A motion under this subpart may be withdrawn at any time before the Board promulgates a decision on the motion. Such withdrawal shall be in writing, shall be filed at the address listed in paragraph (c) of this section, and shall be signed by the moving party or by such party’s representative. If such a writing is timely received, the motion shall be dismissed without prejudice to refiling under this subpart.
§ 20.1405 Rule 1405. Disposition.
(a) Docketing and assignment; notification of representative – (1) General. Motions under this subpart will be docketed in the order received and will be assigned in accordance with § 20.106 (relating to assignment of proceedings). Where an appeal is pending on the same underlying issue at the time the motion is received, the motion and the appeal may be consolidated under the same docket number and disposed of as part of the same proceeding. A motion may not be assigned to any Member who participated in the decision that is the subject of the motion. If a motion is assigned to a panel, the decision will be by a majority vote of the panel Members.
(2) Advancement on the docket. A motion may be advanced on the docket subject to the same substantive and procedural requirements as those applicable to an appeal under Rule 800, paragraph (c) (§ 20.800(c)) or, for legacy appeals, Rule 902, paragraph (c) (§ 20.902(c)).
(3) Notification of representative. When the Board receives a motion under this subpart from an individual whose claims file indicates that he or she is represented, the Board shall provide a copy of the motion to the representative before assigning the motion to a Member or panel. Within 30 days after the date on which the Board provides a copy of the motion to the representative, the representative may file a relevant response, including a request to review the claims file prior to filing a further response. Upon request made within the time allowed under this paragraph (a)(2), the Board shall arrange for the representative to have the opportunity to review the claims file, and shall permit the representative a reasonable time after making the file available to file a further response.
(b) Evidence. No new evidence will be considered in connection with the disposition of the motion. Material included in the record on the basis of Rule 1403(b)(2) (§ 20.1403(b)(2) of this part) is not considered new evidence.
(c) Hearing – (1) Availability. The Board may, for good cause shown, grant a request for a hearing for the purpose of argument. No testimony or other evidence will be admitted in connection with such a hearing. The determination as to whether good cause has been shown shall be made by the member or panel to whom the motion is assigned.
(2) Submission of requests. Requests for such a hearing shall be submitted to the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, DC 20038.
(d) Referral to ensure completeness of the record. Subject to the provisions of paragraph (b) of this section, the Board may use the various agencies of original jurisdiction to ensure completeness of the record in connection with a motion under this subpart.
(e) General Counsel opinions. The Board may secure opinions of the General Counsel in connection with a motion under this subpart. In such cases, the Board will notify the party and his or her representative, if any. When the opinion is received by the Board, a copy of the opinion will be furnished to the party’s representative or, subject to the limitations provided in 38 U.S.C. 5701(b)(1), to the party if there is no representative. A period of 60 days from the date of mailing of a copy of the opinion will be allowed for response. The date of mailing will be presumed to be the same as the date of the letter or memorandum which accompanies the copy of the opinion for purposes of determining whether a response was timely filed.
(f) Decision. The decision of the Board on a motion under this subpart will be in writing. The decision will include separately stated findings of fact and conclusions of law on all material questions of fact and law presented on the record, the reasons or bases for those findings and conclusions, and an order granting or denying the motion.
§ 20.1406 Rule 1406. Effect of revision; discontinuance or reduction of benefits.
(a) General. A decision of the Board that revises a prior Board decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.
(b) Discontinuance or reduction of benefits. Revision of a prior Board decision under this subpart that results in the discontinuance or reduction of benefits is subject to laws and regulations governing the reduction or discontinuance of benefits by reason of erroneous award based solely on administrative error or errors in judgment.
§ 20.1407 Rule 1407. Motions by the Board.
If the Board undertakes, on its own motion, a review pursuant to this subpart, the party to that decision and that party’s representative (if any) will be notified of such motion and provided an adequate summary thereof and, if applicable, outlining any proposed discontinuance or reduction in benefits that would result from revision of the Board’s prior decision. They will be allowed a period of 60 days to file a brief or argument in answer. The failure of a party to so respond does not affect the finality of the Board’s decision on the motion.
§ 20.1408 Rule 1408. Special rules for simultaneously contested claims.
In the case of a motion under this subpart to revise a final Board decision in a simultaneously contested claim, as that term is used in Rule 3(l) (§ 20.3(l) of this part), a copy of such motion shall, to the extent practicable, be sent to all other contesting parties. Other parties have a period of 30 days from the date of mailing of the copy of the motion to file a brief or argument in answer. The date of mailing of the copy will be presumed to be the same as the date of the letter which accompanies the copy. Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice.
§ 20.1409 Rule 1409. Finality and appeal.
(a) A decision on a motion filed by a party or initiated by the Board pursuant to this subpart will be stamped with the date of mailing on the face of the decision, and is final on such date. The party and his or her representative, if any, will be provided with copies of the decision.
(b) For purposes of this section, a dismissal without prejudice under Rule 1404(a)(§ 20.1404(a) of this part), Rule 1404(b)(§ 20.1404(b)), or Rule 1404(f)(§ 20.1404(f)), or a referral under Rule 1405, paragraph (d) (§ 20.1405(d) of this part) is not a final decision of the Board.
(c) Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice.
(d) Chapter 72 of title 38, United States Code (relating to judicial review), applies with respect to final decisions on motions filed by a party or initiated by the Board pursuant to this subpart.
§ 20.1410 Rule 1410. Stays pending court action.
The Board will stay its consideration of a motion under this subpart upon receiving notice that the Board decision that is the subject of the motion has been appealed to a court of competent jurisdiction until the appeal has been concluded or the court has issued an order permitting, or directing, the Board to proceed with the motion.
§ 20.1411 Rule 1411. Relationship to other statutes.
(a) The “benefit of the doubt” rule of 38 U.S.C. 5107(b) does not apply to the Board’s decision, on a motion under this subpart, as to whether there was clear and unmistakable error in a prior Board decision.
(b) For legacy appeals as defined in § 19.2 of this chapter, a motion under this subpart is not a claim subject to reopening under 38 U.S.C. 5108 (prior to the effective date described in Rule 4, paragraph (a) (§ 20.4(a) of this part) (relating to reopening claims on the grounds of new and material evidence).
(c) A motion under this subpart is not an application for benefits subject to any duty associated with 38 U.S.C. 5103(a) (relating to applications for benefits).
(d) A motion under this subpart is not a claim for benefits subject to the requirements and duties associated with 38 U.S.C. 5103A (imposing a duty to assist).
§§ 20.1412-20.1499 [Reserved]
Subpart P [Reserved]
PART 21 – VETERAN READINESS AND EMPLOYMENT AND EDUCATION
Subpart A – Veteran Readiness and Employment
Veteran Readiness and Employment Overview
§ 21.1 Training and rehabilitation for veterans with service-connected disabilities.
(a) Purposes. The purposes of this program are to provide to eligible veterans with compensable service-connected disabilities all services and assistance necessary to enable them to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment.
(b) Basic requirements. Before a service-disabled veteran may receive training and rehabilitation services under Chapter 31, Title 38 U.S.C., three basic requirements must be met:
(1) The Department of Veterans Affairs must first find that the veteran has basic entitlement to services as prescribed by § 21.40.
(2) The services necessary for training and rehabilitation must be identified by the Department of Veterans Affairs and the veteran.
(3) An individual written plan must be developed by the Department of Veterans Affairs and the veteran describing the goals of the program and the means through which these goals will be achieved.
Nonduplication
§ 21.21 Election of benefits under education programs administered by the Department of Veterans Affairs.
(a) Election of benefits required. A veteran must make an election of benefits among the programs of education administered by VA for which he or she may be eligible. A veteran who has basic entitlement to rehabilitation under chapter 31 and is also eligible for assistance under any of the other education programs administered by VA must make an election of benefits between chapter 31 and any other VA program of education for which he or she may be eligible. The veteran may reelect at any time if he or she is otherwise eligible. (See §§ 21.264 and 21.334.)
(b) Use of prior training in formulating a rehabilitation program. If a veteran has pursued an educational or training program under an education program listed in § 21.4020 of this part, the earlier program of education or special restorative training shall be utilized to the extent practicable.
§ 21.22 Nonduplication – Federal programs.
(a) Allowances. A service-disabled veteran who is eligible for benefits under Chapter 31, may not receive a subsistence allowance or elect payment of an allowance at the educational assistance rate under Chapter 30 pursuant to § 21.264 if the veteran:
(1) Is on active duty and is pursuing a course of education which is being paid for by the Armed Forces (or by the Department of Health and Human Services in the case of the Public Health Service), or
(2) Is attending a course of education or training paid for under Chapter 41, Title 5 U.S.C. and whose full salary is being paid to such veteran while so training.
(b) Services which may be authorized. A service-disabled veteran who is in one of the two categories defined in paragraph (a) of this section is entitled to receive all benefits, other than an allowance, to which he or she is otherwise entitled under Chapter 31, including:
(1) Payment of any tuition and fees not paid for by the Armed Forces.
(2) The cost of special services, such as reader services, tutorial assistance, and special equipment during the period of such training.
Claims
§ 21.30 Claims.
A specific claim in the form prescribed by the Department of Veterans Affairs must be filed for:
(a) A program of rehabilitation services, or
(b) Employment assistance.
§ 21.31 Informal claim.
Any communication or action indicating an intent to apply for rehabilitation or employment assistance, from a veteran, a duly authorized representative, or a Member of Congress may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the veteran for execution. In the case of a claim for rehabilitation, or employment assistance, the formal claim will be considered filed as of the date of receipt of the informal claim if received within 1 year from the date it was sent to the veteran, or before cessation of the course, whichever is earlier.
§ 21.32 Notification by VA of necessary information or evidence when a claim is filed; time for claimant response and VA action.
The provisions of this section apply to claims that are governed by this subpart or subpart M of this part.
(a) VA has a duty to notify claimants of necessary information or evidence. Except when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit, when VA receives a complete or substantially complete application for vocational rehabilitation benefits and services provided under this subpart or subpart M of this part VA will:
(1) Notify the claimant of any information and evidence that is necessary to substantiate the claim;
(2) Inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, VA will try to obtain for the claimant; and
(3) Inform the claimant of the time limit, as provided in paragraph (c) of this section, for responding to VA’s notification, and of actions, as provided in paragraph (d) of this section, that VA may take to decide the claim if the claimant does not respond to such notification within 30 days.
(b) Definitions for purposes of §§ 21.32 and 21.33. For purposes of this section and § 21.33:
(1) The term application does not include a notice of disagreement.
(2) The term notification means the notice described in paragraph (a) of this section.
(3) The term substantially complete application means, for an individual’s first application for vocational rehabilitation benefits and services administered by VA, an application containing:
(i) The claimant’s name;
(ii) His or her relationship to the veteran, if applicable;
(iii) Sufficient information for VA to verify the claimed service, if applicable; and
(iv) The benefit claimed.
(4) The term information means nonevidentiary facts, such as the claimant’s Social Security number or address, or the name of the educational institution the claimant is attending.
(c) Time limit. Any information and evidence described in the notification as information and evidence that the claimant is to provide must be received by VA within one year from the date of the notification. If VA does not receive the information and evidence from the claimant within that time period, VA may adjudicate the claim based on the information and evidence in the file.
(d) Actions VA may take after 30 days if no response from claimant. If the claimant has not responded to the notification within 30 days, VA may decide the claim before the expiration of the one-year period, based on all the information and evidence in the file, including information and evidence it has obtained on behalf of the claimant. If VA does so, however, and the claimant subsequently provides the information and evidence specified in the notification within one year of the date of the notification, VA must readjudicate the claim. If VA’s decision on a readjudication is favorable to the claimant, the award of vocational rehabilitation benefits and services shall take effect as if the prior decision by VA on the claim had not been made.
(e) Incomplete applications. If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. If the information necessary to complete the application is not received by VA within one year from the date of such notice, VA cannot pay or provide any benefits based on that application.
(f) Who VA will notify. For the purpose of this section, when VA seeks to notify a claimant, it will provide such notice to:
(1) The claimant;
(2) His or her fiduciary, if any; and
(3) His or her representative, if any.
§ 21.33 VA has a duty to assist claimants in obtaining evidence.
The provisions of this section apply to claims that are governed by this subpart or subpart M of this part.
(a) VA’s duty to assist begins when VA receives a complete or substantially complete application. (1) Except as provided in paragraph (d) of this section, upon receipt of a complete or substantially complete application for vocational rehabilitation benefits and services under this subpart or subpart M of this part, VA will:
(i) Make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and
(ii) Give the assistance described in paragraphs (b) and (c) of this section to an individual attempting to reopen a finally decided claim.
(2) VA will not pay any fees a custodian of records may charge to provide the records VA requests.
(b) Obtaining records not in the custody of a Federal department or agency. (1) VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. These records include relevant records from:
(i) State or local governments;
(ii) Private medical care providers;
(iii) Current or former employers; and
(iv) Other non-Federal governmental sources.
(2) The reasonable efforts described in paragraph (b)(1) of this section will generally consist of an initial request for the records and, if VA does not receive the records, at least one follow-up request. The following are exceptions to this provision concerning the number of requests that VA generally will make:
(i) VA will not make a follow-up request if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.
(ii) If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, reasonable efforts will include an initial request and, if VA does not receive the records, at least one follow-up request to the new source or an additional request to the original source.
(3) The claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including:
(i) The person, company, agency, or other custodian holding the records;
(ii) The approximate time frame covered by the records; and
(iii) In the case of medical treatment records, the condition for which treatment was provided.
(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.
(c) Obtaining records in the custody of a Federal department or agency. (1) Subject to paragraphs (c)(2) through (c)(4) of this section, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to:
(i) Military records;
(ii) Medical and other records from VA medical facilities;
(iii) Records from non-VA facilities providing examination or treatment at VA expense; and
(iv) Records from other Federal agencies.
(2) VA will cease its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include cases in which the Federal department or agency advises VA that the requested records do not exist or that the custodian of such records does not have them.
(3) The claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records from Federal department or agency custodians. At VA’s request, the claimant must provide enough information to identify and locate the existing records, including:
(i) The custodian or agency holding the records;
(ii) The approximate time frame covered by the records; and
(iii) In the case of medical treatment records, the condition for which treatment was provided.
(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records.
(d) Circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete or complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include but are not limited to:
(1) The claimant’s ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;
(2) Claims that are inherently not credible or clearly lack merit;
(3) An application requesting a benefit to which the claimant is not entitled as a matter of law; and
(4) The claimant’s lack of cooperation in providing or requesting information or evidence necessary to substantiate the claim.
(e) Duty to notify claimant of inability to obtain records. (1) VA will notify the claimant either orally or in writing when VA:
(i) Has made reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them; or
(ii) After continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or that further efforts to obtain them would be futile.
(2) For non-Federal records requests, VA may provide the notice to the claimant at the same time it makes its final attempt to obtain the relevant records.
(3) VA will make a written record of any oral notice conveyed under this paragraph to the claimant.
(4) The notice to the claimant must contain the following information:
(i) The identity of the records VA was unable to obtain;
(ii) An explanation of the efforts VA made to obtain the records;
(iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of this section;
(iv) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and
(v) A notice that the claimant is ultimately responsible for obtaining the evidence.
(5) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the existence of such records and ask that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will ask that the claimant obtain the records and provide them to VA.
(6) For the purpose of this section, if VA must notify the claimant, VA will provide notice to:
(i) The claimant;
(ii) His or her fiduciary, if any; and
(iii) His or her representative, if any.
Definitions
§ 21.35 Definitions.
(a) Employment handicap. This term means an impairment of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests.
(b) Independence in daily living. This term means the ability of a veteran, without the service of others, or with a reduced level of the services of others, to live and function within such veteran’s family and community.
(c) Program of education. This term means:
(1) A combination of subjects or unit courses pursued at a school which is generally acceptable to meet requirements for a predetermined educational, professional or vocational objective; or
(2) Such subjects or courses which are generally acceptable to meet requirements for more than one objective if all objectives pursued are generally recognized as being related to a single career field; or
(3) Any unit course or subject, or combination of courses or subjects, pursued by an eligible veteran at any educational institution required by the Administrator of the Small Business Administration as a condition to obtaining financial assistance under the provisions of section (7)(i)(1) of the Small Business Act.
(d) Program of independent living services and assistance. This term includes:
(1) The services provided in this program that are needed to enable a veteran to achieve maximum independence in daily living, including counseling, diagnostic, medical, social, psychological, and educational services determined by the Department of Veterans Affairs to be necessary, and
(2) The monthly allowance authorized by 38 U.S.C. Chapter 31 for such a veteran.
(e) Rehabilitated to the point of employability. This term means that the veteran is employable in an occupation for which a vocational rehabilitation program has been provided under this program
(f) Rehabilitation program. This term includes, when appropriate:
(1) A vocational rehabilitation program (see paragraph (i) of this section);
(2) A program of independent living services and assistance (see paragraph (d) of this section) for a veteran for whom a vocational goal has been determined not to be currently reasonably feasible; or
(3) A program of employment services for employable veterans who are prior participants in Department of Veterans Affairs or state-federal vocational rehabilitation programs.
(g) Serious employment handicap. This term means a significant impairment of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests.
(h) Vocational goal. (1) The term vocational goal means a gainful employment status consistent with a veteran’s abilities, aptitudes, and interests;
(2) The term achievement of a vocational goal is reasonably feasible means the effects of the veteran’s disability (service and nonservice-connected), when considered in relation to the veteran’s circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran’s abilities, aptitudes, and interests;
(3) The term achievement of a vocational goal is not currently reasonably feasible means the effects of the veteran’s disability (service and nonservice-connected), when considered in relation to the veteran’s circumstances at the time of the determination:
(i) Prevent the veteran from successfully achieving a vocational goal at that time; or
(ii) Are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible.
(i) Vocational rehabilitation program. This term includes:
(1) The services that are needed for the accomplishment of the purposes of 38 U.S.C. Chapter 31 including such counseling, diagnostic, medical, social, psychological, independent living, economic, educational, vocational, and employment services as are determined by the Department of Veterans Affairs to be needed;
(i) In the case of a veteran for whom the achievement of a vocational goal has not been found to be currently infeasible, such services include:
(A) Determining whether a vocational goal is reasonably feasible;
(B) Improving the veteran’s potential to participate in a program of services designed to achieve a vocational goal;
(C) Enabling the veteran to achieve maximum independence in daily living;
(ii) In the case of a veteran for whom achievement of a vocational goal is feasible, such services include assisting the veteran to become, to the maximum extent feasible, employable and to obtain and maintain suitable employment; and
(2) The term also includes the monetary assistance authorized by 38 U.S.C. Chapter 31 for a veteran receiving any of the services described in this paragraph.
(j) Program of employment services. This term includes the counseling, medical, social, and other placement and post-placement services provided to a veteran under 38 U.S.C. Chapter 31 to assist the veteran in obtaining or maintaining suitable employment.
(k) Other terminology. The following are primarily intended as explanations rather than definitions of terms to which frequent reference will be made in these regulations.
(1) Counseling psychologist. Unless otherwise stated, the term counseling psychologist refers to a counseling psychologist in the Veteran Readiness and Employment (VR&E) Division in the Veterans Benefits Administration, Department of Veterans Affairs.
(2) Vocational rehabilitation specialist. Unless otherwise stated, the term vocational rehabilitation specialist refers to a vocational rehabilitation specialist in the VR&E Division in the Veterans Benefits Administration of the Department of Veterans Affairs, or to a Department of Veterans Affairs counseling psychologist performing the duties of a vocational rehabilitation specialist.
(3) School, educational institution, institution. These terms means any public or private school, secondary school, vocational school, correspondence school, business school, junior college, teachers’ college, college, normal school, professional school, university, or scientific or technical institution, or other institution furnishing education for adults.
(4) Training establishment. This term means any establishment providing apprentice or other training on the job, including those under the supervision of a college or university or any State department of education, or any State apprenticeship agency, or any State board of vocational education, or any joint apprenticeship committee, or the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. Chapter 4C, or any agency of the Federal Government authorized to supervise such training.
(5) Rehabilitation facility. This term means a distinct organizational entity, either separate or within a larger insititution or agency, which provides goal-oriented comprehensive and coordinated services to individuals designed to evaluate and minimize the handicapping effects of physical, mental, social and vocational disadvantages, and to effect a realization of the individual’s potential.
(6) Workshop. This term means a charitable organization or institution, conducted not for profit, but for the purpose of carrying out an organized program of evaluation and rehabilitation for handicapped workers and/or for providing such individuals with remunerative employment and other occupational rehabilitative activity of an educational or therapeutic nature.
(7) Vocational rehabilitation counselor. Unless otherwise stated, the term vocational rehabilitation counselor refers to a vocational rehabilitation counselor in the VR&E Division in the Veterans Benefits Administration, Department of Veterans Affairs.
Entitlement
§ 21.40 Basic entitlement to vocational rehabilitation benefits and services.
An individual meets the basic entitlement criteria for vocational rehabilitation benefits and services under this subpart if VA determines that he or she meets the requirements of paragraph (a), (b), (c), or (d) of this section. For other requirements affecting the provision of vocational rehabilitation benefits and services, see §§ 21.41 through 21.46 (period of eligibility), § 21.53 (reasonable feasibility of achieving a vocational goal), and §§ 21.70 through 21.79 (months of entitlement).
(a) Veterans with at least 20 percent disability. The individual is a veteran who meets all of the following criteria:
(1) Has a service-connected disability or combination of disabilities rated 20 percent or more under 38 U.S.C. chapter 11.
(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.
(3) Is determined by VA to be in need of rehabilitation because of an employment handicap.
(b) Veterans with 10 percent disability. The individual is a veteran who meets all of the following criteria:
(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11.
(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.
(3) Is determined by VA to be in need of rehabilitation because of a serious employment handicap.
(c) Servicemembers awaiting discharge. The individual is a servicemember who, while waiting for discharge from the active military, naval, or air service, is hospitalized, or receiving outpatient medical care, services, or treatment, for a disability that VA will likely determine to be service-connected. In addition, VA must have determined that:
(1) The hospital or other medical facility providing the hospitalization, care, service, or treatment is doing so under contract or agreement with the Secretary concerned, or is under the jurisdiction of the Secretary of Veterans Affairs or the Secretary concerned;
(2) The individual is in need of rehabilitation because of an employment handicap; and
(3) The individual has a disability or combination or disabilities that will likely be:
(i) At least 10 percent compensable under 38 U.S.C. chapter 11 and he or she originally applied for assistance under 38 U.S.C. chapter 31 after March 31, 1981, and before November 1, 1990; or
(ii) At least 20 percent compensable under 38 U.S.C. chapter 11 and he or she originally applied for assistance under 38 U.S.C. chapter 31 on or after November 1, 1990.
(d) Exception for veterans who first applied after March 31, 1981, and before November 1, 1990. The individual is a veteran who:
(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11;
(2) Originally applied for assistance under 38 U.S.C. chapter 31 after March 31, 1981, and before November 1, 1990; and
(3) Is determined by VA to be in need of rehabilitation because of an employment handicap.
Periods of Eligibility
§ 21.41 Basic period of eligibility.
(a) Time limit for eligibility to receive vocational rehabilitation. (1) For purposes of §§ 21.41 through 21.46, the term basic period of eligibility means the 12-year period beginning on the date of a veteran’s discharge or release from his or her last period of active military, naval, or air service, and ending on the date that is 12 years from the veteran’s discharge or release date, but the beginning date may be deferred or the ending date extended under the sections referred to in paragraph (b) of this section. (See §§ 21.70 through 21.79 concerning duration of rehabilitation programs.)
(2) Except as provided in paragraph (b) or (c) of this section, the period during which an individual may receive a program of vocational rehabilitation benefits and services under 38 U.S.C. chapter 31 is limited to his or her basic period of eligibility.
(b) Deferral and extension of the basic period of eligibility. VA may defer the beginning date of a veteran’s basic period of eligibility under § 21.42. VA may extend the ending date of a veteran’s basic period of eligibility under § 21.42 (extension due to medical condition); § 21.44 (extension for a veteran with a serious employment handicap), § 21.45 (extension during a program of independent living services and assistance), and § 21.46 (extension for a veteran recalled to active duty).
(c) Servicemember entitled to vocational rehabilitation services and assistance before discharge. The basic period of eligibility for a servicemember who is entitled to vocational rehabilitation services and assistance under 38 U.S.C. chapter 31 for a period before discharge does not run while the servicemember remains on active duty, but begins on the date of discharge from the active military, naval, or air service. The period of eligibility requirements of this section are not applicable to provision of vocational rehabilitation services and assistance under chapter 31 during active duty.
§ 21.42 Deferral or extension of the basic period of eligibility.
The basic period of eligibility does not run as long as any of the following reasons prevents the veteran from commencing or continuing a vocational rehabilitation program:
(a) Qualifying compensable service-connected disability(ies) not established. The basic period of eligibility does not commence until the day VA notifies a veteran of a rating determination by VA that the veteran has a qualifying compensable service-connected disability under § 21.40.
(b) Character of discharge is a bar to benefits. (1) The basic period of eligibility does not commence until the veteran meets the requirement of a discharge or release under conditions other than dishonorable. (For provisions regarding character of discharge, see § 3.12 of this chapter.)
(2) If VA has considered a veteran’s character of discharge to be a bar to benefits, the basic period of eligibility commences only when one of the following happens:
(i) An appropriate authority changes the character of discharge or release; or
(ii) VA determines that the discharge or release was under conditions other than dishonorable or that the discharge or release was, but no longer is, a bar to benefits.
(3) If there is a change in the character of discharge, or the discharge or release otherwise is determined, as provided in paragraph (b)(2) of this section, not to be a bar to benefits, the beginning date of the basic period of eligibility will be the effective date of the change or VA determination.
(c) Commencement or continuation of participation prevented by medical condition(s). (1) The basic period of eligibility does not run during any period when a veteran’s participation in a Veteran Readiness and Employment (VR&E) program is determined to be infeasible for 30 days or more because of any medical condition(s) of the veteran, including the disabling effects of chronic alcoholism (see paragraphs (c)(2) through (c)(5) of this section).
(2) For purposes of this section, the term disabling effects of chronic alcoholism means alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations that:
(i) Have been diagnosed as manifestations of alcohol dependency or chronic alcohol abuse; and
(ii) Have been determined to prevent the affected veteran from beginning or continuing in a program of VR&E.
(3) A diagnosis of alcoholism, chronic alcoholism, alcohol dependency, or chronic alcohol abuse, in and of itself, does not satisfy the definition of disabling effects of chronic alcoholism.
(4) Injuries sustained by a veteran as a proximate and immediate result of activity undertaken by the veteran while physically or mentally unqualified to do so due to alcoholic intoxication are not considered disabling effects of chronic alcoholism. An injury itself, however, may prevent commencement or continuation of a rehabilitation program.
(5) For purposes of this section, after November 17, 1988, the disabling effects of chronic alcoholism do not constitute willful misconduct. See 38 U.S.C. 105(c).
(6) If the basic period of eligibility is delayed or interrupted under this paragraph (c) due to any medical condition(s) of the veteran, it will begin or resume on the date a Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) notifies the veteran in writing that the CP or VRC has determined, based on the evidence of record, that participation in a VR&E program is reasonably feasible for the veteran.
§ 21.44 Extension of the basic period of eligibility for a veteran with a serious employment handicap.
(a) Conditions for extension. A Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) may extend the basic period of eligibility of a veteran with a serious employment handicap when the veteran’s current employment handicap and need for rehabilitation services and assistance necessitate an extension under the following conditions:
(1) Not rehabilitated to the point of employability. The veteran has not been rehabilitated to the point of employability; or
(2) Rehabilitated to the point of employability. The veteran was previously declared rehabilitated to the point of employability, but currently meets one of the following three conditions:
(i) One or more of the veteran’s service-connected disabilities has worsened, preventing the veteran from working in the occupation for which he or she trained, or in a related occupation;
(ii) The veteran’s current employment handicap and capabilities clearly show that the occupation for which the veteran previously trained is currently unsuitable; or
(iii) The occupational requirements in the occupation for which the veteran trained have changed to such an extent that additional services are necessary to enable the veteran to work in that occupation, or in a related field.
(b) Length of eligibility extension. For a veteran with a serious employment handicap, a CP or VRC may extend the basic period of eligibility for such additional period as the CP or VRC determines is needed for the veteran to accomplish the purposes of his or her individualized rehabilitation program.
§ 21.45 Extending the period of eligibility for a program of independent living beyond basic period of eligibility.
A Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) may extend the period of eligibility for a veteran’s program of independent living services beyond the veteran’s basic period of eligibility if the CP or VRC determines that an extension is necessary for the veteran to achieve maximum independence in daily living. The extension may be for such period as the CP or VRC determines is needed for the veteran to achieve the goals of his or her program of independent living. (See § 21.76(b) concerning duration of independent living services.)
§ 21.46 Veteran ordered to active duty; extension of basic period of eligibility.
If VA determines that a veteran is prevented from participating in, or continuing in, a program of vocational rehabilitation as a result of being ordered to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, the veteran’s basic period of eligibility will be extended by the length of time the veteran serves on active duty plus 4 months.
§ 21.47 Eligibility for employment assistance.
(a) Providing employment services to veterans eligible for a rehabilitation program under chapter 31. Each veteran, other than one found in need of a program of independent living services and assistance, who is otherwise currently eligible for and entitled to participate in a program of rehabilitation under chapter 31 may receive employment services. Included are those veterans who:
(1) Have completed a program of rehabilitation services under chapter 31 and been declared rehabilitated to the point of employability;
(2) Have not completed a period of rehabilitation to the point of employability under chapter 31, but:
(i) Have elected to secure employment without completing the period of rehabilitation to the point of employability; and
(ii) Are employable; or
(3) Have never received services for rehabilitation to the point of employability under chapter 31 if they:
(i) Are employable or employed in a suitable occupation;
(ii) Have an employment handicap or a serious employment handicap; and
(iii) Need employment services to secure and/or maintain suitable employment.
(b) Veteran previously participated in a VA vocational rehabilitation program or a similar program under the Rehabilitation Act of 1973, as amended. A veteran who at some time in the past has participated in a vocational rehabilitation program under chapter 31 or a similar program under the Rehabilitation Act of 1973 as amended, and is employable is eligible for employment services under the following conditions even though he or she is ineligible for any other assistance under chapter 31:
(1) The veteran is employable in a suitable occupation;
(2) The veteran has filed a claim for vocational rehabilitation or employment assistance;
(3) The veteran meets the criteria for eligibility described in § 21.40; and
(4) The veteran has an employment handicap or serious employment handicap; and
(5) The veteran:
(i) Completed a vocational rehabilitation program under 38 U.S.C. ch. 31 or participated in such a program for at least 90 days on or after September 16, 1940; or
(ii) Completed a vocational rehabilitation program under the Rehabilitation Act of 1973 after September 26, 1975, or participated in such a program which included at least 90 days of postsecondary education or vocational training.
(c) Veteran never received vocational rehabilitation services from the Department of Veterans Affairs or under the Rehabilitation Act of 1973. If a veteran is currently ineligible under chapter 31 because he or she does not have an employment handicap, and has never before participated in a vocational rehabilitation program under chapter 31 or under the Rehabilitation Act of 1973, no employment assistance may now be provided to the veteran under chapter 31.
(d) Duration of period of employment assistance. The periods during which employment assistance may be provided are not subject to limitations on periods of eligibility for vocational rehabilitation provided in §§ 21.41 through 21.45 of this part, but entitlement to such assistance is, as provided in § 21.73 of this part, limited to 18 total months of assistance.
§ 21.48 Severance of service-connection – reduction to noncompensable degree.
When a rating action is taken which proposes severance of service-connection or reduction to a noncompensable degree, the provisions of the following paragraphs will govern the veteran’s entitlement to rehabilitation and employment assistance under 38 U.S.C. Chapter 31.
(a) Applicant. If the veteran is an applicant for rehabilitation or employment assistance when the proposed rating action is taken, all processes respecting determination of entitlement or induction into training shall be immediately suspended. In no event shall any veteran be inducted into a rehabilitation program or provided employment assistance during the interim periods provided in § 3.105 (d) and (e) of this title. If the proposed rating action becomes final, the application will be denied. See also § 21.50 as to initial evaluation.
(b) Reduction while in a rehabilitation program. If the proposed rating action is taken while the veteran is in a rehabilitation program and results in a reduction to a noncompensable rating of his or her disability, the veteran may be retained in the program until the completion of the program, except if “discontinued” under § 21.198 he or she may not reenter.
(c) Severance while in a rehabilitation program. If the proposed rating action is taken while the veteran is in a rehabilitation program and results in severance of the service-connection of his or her disability, rehabilitation will be terminated effective as of the last day of the month in which severance of service-connection becomes final.
Initial and Extended Evaluation
§ 21.50 Initial evaluation.
(a) Entitlement to an initial evaluation. VA will provide an initial evaluation to an individual who:
(1) Applies for benefits under 38 U.S.C. chapter 31; and
(2) Meets the service-connected disability requirements of § 21.40.
(b) Determinations to be made by VA during the initial evaluation. A counseling psychologist (CP) or vocational rehabilitation counselor (VRC) will determine:
(1) Whether the individual has an employment handicap as determined in accordance with this section and § 21.51;
(2) Whether an individual with an employment handicap has a serious employment handicap as determined in accordance with this section and § 21.52; and
(3) Whether the achievement of a vocational goal is currently reasonably feasible as described in § 21.53.
(c) Factors for assessment as part of the initial evaluation. In making the determinations under paragraph (b) of this section, the following factors will be developed and assessed:
(1) The handicapping effects of the individual’s service-connected and nonservice-connected disability(ies) on employability and on independence in daily living;
(2) The individual’s physical and mental capabilities that may affect employability and ability to function independently in daily living activities in family and community;
(3) The impact of the individual’s identified vocational impairments on the individual’s ability to prepare for, obtain, and keep suitable employment;
(4) The individual’s abilities, aptitudes, and interests;
(5) The individual’s personal history and current circumstances (including educational and training achievements, employment record, developmental and related vocationally significant factors, and family and community adjustment); and
(6) Other factors that may affect the individual’s employability.
(d) Need for cooperation in the initial evaluation process. The individual’s cooperation is essential in the initial evaluation process. If the individual does not cooperate, the CP or VRC will make reasonable efforts to secure the individual’s cooperation. If, despite those efforts, the individual fails to cooperate, VA will suspend the initial evaluation process (see § 21.362, regarding satisfactory conduct and cooperation, and § 21.364, regarding unsatisfactory conduct and cooperation).
§ 21.51 Determining employment handicap.
For the purposes of § 21.50, an employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(a) Vocational impairment. The individual has a vocational impairment; that is, an impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests.
(b) Effects of impairment not overcome. The individual has not overcome the effects of the individual’s impairment of employability through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. This situation includes an individual who qualifies for a suitable job, but who does not obtain or keep the job for reasons beyond his or her control.
(c) Contribution of the service-connected disability(ies) to the individual’s overall vocational impairment. (1) Except as provided in paragraph (c)(3) of this section, the service-connected disability(ies) must contribute in substantial part to the individual’s overall vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall vocational impairment, but need not be the sole or primary cause of the employment handicap.
(2) When determining the individual’s overall vocational impairment, the CP or VRC will consider the factors identified in § 21.50(c).
(3) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual’s service-connected disability(ies) need not contribute to the individual’s overall vocational impairment.
§ 21.52 Determining serious employment handicap.
(a) Requirements for determining serious employment handicap. For each individual who is found to have an employment handicap, a CP or VRC must make a separate determination of whether the individual has a serious employment handicap. For the purposes of an initial evaluation under § 21.50, a serious employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(1) Significant vocational impairment. The individual has a significant vocational impairment; that is, a significant impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests, considering the factors described in § 21.50 and paragraph (b) of this section.
(2) Effects of significant impairment not overcome. The individual has not overcome the effects of the significant vocational impairment through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. This includes an individual who qualifies for a suitable job, but who does not obtain or keep the job for reasons beyond his or her control.
(3) Contribution of the service-connected disability(ies) to the individual’s overall significant vocational impairment. (i) Except as provided in paragraph (a)(3)(ii) of this section, the service-connected disability(ies) must contribute in substantial part to the individual’s overall significant vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall significant vocational impairment, but need not be the sole or primary cause of the serious employment handicap.
(ii) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual’s service-connected disability(ies) need not contribute to the individual’s overall significant vocational impairment.
(b) Factors for assessment during the initial evaluation, when determining whether a significant vocational impairment exists. The combination of all restrictions and their effects on the individual define the extent of the vocational impairment and its significance. When determining whether the individual has a significant vocational impairment, VA will develop and assess the following factors and their effects:
(1) Number of disabling conditions;
(2) Severity of disabling condition(s);
(3) Existence of neuropsychiatric condition(s);
(4) Adequacy of education or training for suitable employment;
(5) Number, length, and frequency of periods of unemployment or underemployment;
(6) A pattern of reliance on government support programs, such as welfare, service-connected disability compensation, nonservice-connected disability pension, worker’s compensation, or Social Security disability;
(7) Extent and complexity of services and assistance the individual needs to achieve rehabilitation;
(8) Negative attitudes toward individuals with disabilities and other evidence of restrictions on suitable employment, such as labor market conditions; discrimination based on age, race, gender, disability or other factors; alcoholism or other substance abuse; and
(9) Other factors that relate to preparing for, obtaining, or keeping employment consistent with the individual’s abilities, aptitudes, and interests.
§ 21.53 Reasonable feasibility of achieving a vocational goal.
(a) Requirement. The Department of Veterans Affairs shall determine the reasonable feasibility of achieving a vocational goal in each case in which a veteran has either:
(1) An employment handicap, or
(2) A serious employment handicap.
(b) Definition. The term vocational goal means a gainful employment status consistent with the veteran’s abilities, aptitudes, and interests.
(c) Expeditious determination. The determination of reasonable feasibility shall be made as expeditiously as possible when necessary information has been developed in the course of initial evaluation. If an extended evaluation is necessary as provided in § 21.57 a decision of feasibility shall be made by the end of the extended evaluation. Any reasonable doubt shall be resolved in favor of a finding of feasibility.
(d) Vocational goal is reasonably feasible. Achievement of a vocational goal is reasonably feasible for a veteran with either an employment or serious employment handicap when the following conditions are met:
(1) Vocational goal(s) has (have) been identified;
(2) The veteran’s physical and mental conditions permit training for the goal(s) to begin within a reasonable period; and
(3) The veteran:
(i) Possesses the necessary educational skills and background to pursue the vocational goal; or
(ii) Will be provided services by the Department of Veterans Affairs to develop such necessary educational skills as part of the program.
(e) Criteria for reasonable feasibility not met. (1) When VA finds that the provisions of paragraph (d) of this section are not met, but VA has not determined that achievement of a vocational goal is not currently reasonably feasible, VA shall provide the rehabilitation services contained in § 21.35(i)(1)(i) of this part as appropriate;
(2) A finding that achievement of a vocational goal is infeasible without a period of extended evaluation requires compelling evidence which establishes infeasibility beyond any reasonable doubt.
(f) Independent living services. The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) shall determine the current reasonable feasibility of a program of independent living services in each case in which a vocational rehabilitation program is not found reasonably feasible. The concurrence of the Veteran Readiness and Employment (VR&E) Officer is required in any case in which the CP or VRC does not approve a program of independent living services.
(g) Responsible staff. A CP or VRC in the VR&E Division shall determine whether achievement of a vocational goal is:
(1) Reasonably feasible; or
(2) Not currently reasonably feasible under the provisions of paragraph (e) of this section for the purpose of determining present eligibility to receive a program of independent living services.
§ 21.57 Extended evaluation.
(a) Purpose. The purpose of an extended evaluation for a veteran with a serious employment handicap is to determine the current feasibility of the veteran achieving a vocational goal, when this decision reasonably cannot be made on the basis of information developed during the initial evaluation.
(b) Scope of services. During the extended evaluation, a veteran may be provided:
(1) Diagnostic and evaluative services;
(2) Services to improve his or her ability to attain a vocational goal;
(3) Services to improve his or her ability to live and function independently in the community;
(4) An allowance as provided in § 21.260.
(c) Determination. (1) The determination of the reasonable feasibility of a veteran achieving a vocational goal will be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation, or an extension of that period. Any reasonable doubt as to feasibility will be resolved in the veteran’s favor;
(2) When it is reasonably feasible for the veteran to achieve a vocational goal, an individualized written rehabilitation plan (IWRP) will be developed as indicated in § 21.84 of this part.
(d) Responsibility for determining the need for a period of extended evaluation. A Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) in the Veteran Readiness and Employment (VR&E) Division shall determine whether a period of extended evaluation is needed.
§ 21.58 Redetermination of employment handicap and serious employment handicap.
(a) Prior to induction into a program. A determination as to employment handicap, serious employment handicap, or eligibility for a program of employment services will not be changed except for:
(1) Unmistakable error in fact or law; or
(2) New and material evidence which justifies a change.
(b) After induction into a program. (1) The Department of Veterans Affairs will not redetermine a finding of employment handicap, serious employment handicap, or eligibility for a program of employment services subsequent to the veteran’s induction into a program because of a reduction in his or her disability rating, including a reduction to 0 percent:
(2) The Department of Veterans Affairs may consider whether a finding of employment handicap should be changed to serious employment handicap when there is an increase in the degree of service-connected disability, or other significant change in the veteran’s situation;
(3) A redetermination of employment handicap, serious employment handicap, or eligibility for a program of employment services will be made when there is a clear and unmistakable error of fact or law.
(c) Following rehabilitation or discontinuance. A veteran’s eligibility and entitlement to assistance must be redetermined in any case in which:
(1) The veteran is determined to be rehabilitated to the point of employability under the provisions of § 21.190;
(2) The veteran is determined to meet the requirements for rehabilitation under the provisions of § 21.196; or
(3) The veteran’s program is discontinued under the provisions of § 21.198, except as described in § 21.198(c)(3).
Vocational Rehabilitation Panel
§ 21.60 Vocational Rehabilitation Panel.
(a) Establishment of the Panel. A Vocational Rehabilitation Panel will be established at each field facility by the facility head. The purpose of the Panel is to provide technical assistance in the planning of rehabilitation programs for seriously disabled veterans and dependents. This purpose will be most effectively carried out through use of the services of a wide range of professionals to bring the resources of the Department of Veterans Affairs and the community to bear on problems presented in the individual case.
(b) Composition of the Panel. The Panel will include, but not be limited to the following:
(1) A Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) in the Veteran Readiness and Employment (VR&E) Division as the chairperson;
(2) A vocational rehabilitation specialist in VR&E;
(3) A medical consultant from a Department of Veterans Affairs Medical Center;
(4) A member of the Social Services staff from a Department of Veterans Affairs Medical Center; and
(5) Other specialists from the Department of Veterans Affairs.
(c) Appointment to the Panel. (1) The VR&E Officer may not serve as either chairperson or member of the Panel.
(2) The VR&E Officer will arrange for the participation of nonmedical professional staff in the Panel’s meetings.
(d) Scope of Panel review. The Panel will review each case which has been referred to it in relation to:
(1) Specific reason for the referral; and
(2) Other problem areas which the Panel identifies in the course of its consideration of the case.
(e) Referral. A case may be referred to the Panel by:
(1) A CP or VRC in VR&E;
(2) A vocational rehabilitation specialist in VR&E; or
(3) The VR&E officer.
(f) Report. The Panel must prepare a report on its findings and recommendations in each case. The Panel’s recommendations may include specific actions which are warranted on the basis of current information, or may identify additional information needed to provide a sounder basis for planning the veteran’s program of rehabilitation.
§ 21.62 Duties of the Vocational Rehabilitation Panel.
(a) Consultation requested. The panel shall provide technical and consultative services when requested by professional staff of the Veteran Readiness and Employment (VR&E) Division to:
(1) Assist staff members in planning and carrying out a rehabilitation plan for seriously disabled veterans and their dependents; and
(2) Consider other cases of individuals eligible for, or being provided assistance under chapter 31 and other programs of education and training administered by the Department of Veterans Affairs.
(b) Independent living services. The Panel has a key responsibility to assure that seriously disabled service-connected veterans who need independent living services to increase their independence in daily living are provided necessary services. In carrying out this responsibility the Panel shall review all cases which come before it to assure that the proposed program of vocational rehabilitation or independent living services includes those services necessary to enable the veteran to achieve the goals of the program.
(c) Dependents. The specific duties of the Panel with respect to dependents are more fully described §§ 21.3300, 21.3301, 21.3304, 21.4105, and 21.4276 of this part.
Duration of Rehabilitation Programs
§ 21.70 Vocational rehabilitation.
(a) General. The goal of a vocational rehabilitation program is to:
(1) Evaluate and improve the veteran’s ability to achieve a vocational goal;
(2) Provide services needed to qualify for suitable employment;
(3) Enable the veteran to achieve maximum independence in daily living;
(4) Enable the veteran to become employed in a suitable occupation and to maintain suitable employment.
(b) Vocational rehabilitation program. This term includes:
(1) The services that are needed for the accomplishment of the purposes of Chapter 31, including such counseling, diagnostic, medical, social, psychological, independent living, economic, educational, vocational, and employment services as are determined by the Department of Veterans Affairs to be needed;
(i) In the case of a veteran for whom the achievement of a vocational goal has not been found to be currently infeasible such needed services include:
(A) Determining whether a vocational goal is reasonably feasible;
(B) Improving the veteran’s potential to participate in a program of services designed to achieve a vocational goal;
(C) Enabling the veteran to achieve maximum independence in daily living;
(ii) In the case of a veteran for whom achievement of a vocational goal is feasible, such needed services include assisting the veteran to become, to the maximum extent feasible, employable and to obtain and maintain suitable employment;
(2) The term also includes the monetary assistance authorized by Chapter 31 for a veteran receiving any of the services described in this paragraph.
(c) Duration of vocational rehabilitation. Decisions on the duration of periods for attaining the goals named in paragraph (a) of this section are made in the course of development and approval of the Individualized Written Rehabilitation Plan. However, the duration of a vocational rehabilitation program may not exceed 48 months (or its equivalent when pursued on a part-time basis), except as provided in § 21.78.
§ 21.72 Rehabilitation to the point of employability.
(a) General. Rehabilitation to the point of employability may include the services needed to:
(1) Evaluate and improve the veteran’s ability to undertake training;
(2) Train the veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into the occupation, e.g., an MSW for social work, the veteran shall be trained to that level.
(b) When duration of training may exceed general requirements – (1) Employment handicap. If the amount of training necessary to qualify for employment in a particular occupation in a geographical area where a veteran lives or will seek employment exceeds the amount generally needed for employment in that occupation, the Department of Veterans Affairs will provide, or arrange for the necessary additional training.
(2) Serious employment handicap. The Department of Veterans Affairs will assist a veteran with a serious employment handicap to train to a higher level than is usually required to qualify in a particular occupation, when one of the following conditions exist:
(i) The veteran is preparing for a type of work in which he or she will be at a definite disadvantage in competing with nondisabled persons for jobs or business, and the additional training will help to offset the competitive disadvantage;
(ii) The number of feasible occupations are restricted, and additional training will enhance the veteran’s employability in one of those occupations;
(iii) The number of employment opportunities within feasible occupations are restricted.
(c) Responsibility for estimating duration of training. (1) The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) shall estimate the duration of training and the estimate shall be incorporated in the IWRP (Individualized Written Rehabilitation Plan). When the period of training is estimated to exceed 48 months, the concurrence of the Veteran Readiness and Employment (VR&E) Officer is required, prior to approving the IWRP, under conditions listed in § 21.78.
(2) The estimated duration of the period of training required to complete an original or amended IWRP may be extended when necessary. Authorization of an extension is the responsibility of the CP or VRC, except as provided in paragraph (d) of this section. Any extension which will result in use of more than 48 months of entitlement must meet conditions described in § 21.78.
(d) Extension of training by the vocational rehabilitation specialist. (1) The VRS (Vocational Rehabilitation Specialist) may authorize an extension of up to six months of the period of vocational rehabilitation training authorized by the IWRP when:
(i) The veteran is in rehabilitation to the point of employability status under § 21.190;
(ii) The veteran has completed more than half of the prescribed training;
(iii) The veteran is making satisfactory progress;
(iv) The extension is necessary to complete training;
(v) Training can be completed within six months; and
(vi) The extension will not result in use of more than 48 months of entitlement under Chapter 31 alone or in combination with other programs identified in § 21.4020.
(2) If the conditions listed in paragraph (d)(1) of this section are not met, and an extension is needed to complete the program, the case will be referred to the CP or VRC for a determination.
§ 21.73 Duration of employment assistance programs.
(a) Duration. Employment assistance may be provided to the veteran for the period necessary to enable the veteran to secure employment in a suitable occupation, and to adjust in the employment. This period shall not exceed 18 months. A veteran may be provided such assistance if he or she is eligible for employment assistance under the provisions of § 21.47 of this part.
(b) Employment assistance not charged against Chapter 31 entitlement. The period of employment assistance provided in paragraph (a) of this section is not charged against the months of entitlement under Chapter 31 (see § 21.70).
§ 21.74 Extended evaluation.
(a) General. An extended evaluation may be authorized for the period necessary to determine whether the attainment of a vocational goal is currently reasonably feasible for the veteran. The services which may be provided during the period of extended evaluation are listed in § 21.57(b) of this part.
(b) Duration. An extended evaluation may not be for less than two weeks (full or part-time equivalent) nor for more than twelve months, unless a longer period is necessary to determine whether achievement of a vocational goal is reasonably feasible.
(c) Approval of the period of an extended evaluation. (1) The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) may approve an initial period of up to 12 months for an extended evaluation.
(2) An additional period of extended evaluation of up to 6 months may be approved by the CP or VRC, if there is reasonable certainty that the feasibility of achieving a vocational goal can be determined during the additional period. The CP or VRC will obtain the concurrence of the Veteran Readiness and Employment (VR&E) Officer before approving the extension of a period of extended evaluation.
(3) An extension beyond a total period of 18 months for additional periods of up to 6 months each may only be approved by the CP or VRC if there is a substantial certainty that a determination of current feasibility may be made within this extended period. The concurrence of the VR&E Officer is also required for this extension.
§ 21.76 Independent living.
(a) General. A program of independent living services may be authorized to enable the veteran to:
(1) Reach the goals of the program, and
(2) Maintain the newly achieved level of independence in daily living.
(b) Period of independent living services. The duration of an independent living services program may not exceed 24 months unless the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) finds that an additional period of up to 6 months would enable the veteran to substantially increase his or her level of independence in daily living. The concurrence of the Vocational Counseling and Rehabilitation Officer in this finding is required.
§ 21.78 Approving more than 48 months of rehabilitation.
(a) General. Neither the basic period of entitlement which may be authorized for a program of rehabilitation under Chapter 31 alone, nor a combination of entitlement of Chapter 31 and other programs listed in § 21.4020 shall exceed 48 months except as indicated in paragraphs (b) and (c) of this section.
(b) Employment handicap. A rehabilitation program for a veteran with an employment handicap may only be extended beyond 48 months when:
(1) The veteran previously completed training for a suitable occupation but the veteran’s service-connected disability has worsened to the point that he or she is unable to perform the duties of the occupation for which training had been provided, and a period of training in the same or a different field is required. An extension beyond 48 months under Chapter 31 alone shall be authorized for this purpose.
(2) The occupation in which the veteran previously completed training is found to be unsuitable because of the veteran’s abilities and employment handicap. An extension beyond 48 months under Chapter 31 alone shall be approved for this purpose.
(3) The veteran previously used education benefit entitlement under other programs administered by VA, and the additional period of assistance to be provided under Chapter 31 which the veteran needs to become employable will result in more than 48 months being used under all VA education programs, under these conditions the number of months necessary to complete the program may be authorized under Chapter 31, provided that the length of the extension will not result in authorization of more than 48 months under Chapter 31 alone.
(4) A veteran in an approved Chapter 31 program has elected payment of benefits at the Chapter 30 educational assistance rate. The 48 month limitation may be exceeded only:
(i) To the extent that the entitlement in excess of 48 months does not exceed the entitlement previously used by the veteran in a course at the secondary school level under § 21.4235 before December 31, 1989, or
(ii) If the veteran is in a course on a term, quarter, or semester basis which began before the 36 month limitation on Chapter 30 entitlement was reached, and completion of the course will be possible by permitting the veteran to complete the training under Chapter 31.
(5) The assistance to be provided in excess of 48 months consists only of a period of employment assistance (see § 21.73).
(c) Serious employment handicap. The duration of a rehabilitation program for a veteran with a serious employment handicap may be extended beyond 48 months under Chapter 31 for the number of months necessary to complete a rehabilitation program under the following conditions:
(1) To enable the veteran to complete a period of rehabilitation to the point of employability;
(2) To provide an extended evaluation in cases in which the total period needed for an extended evaluation and for rehabilitation to the point of employability would exceed 48 months;
(3) To provide a program of independent living services, including cases in which achievement of a vocational goal becomes feasible during or following a program of independent living services;
(4) Following rehabilitation to the point of employability:
(i) The veteran has been unable to secure employment in the occupation for which training has been provided despite intensive efforts on the part of the Department of Veterans Affairs and the veteran, and a period of retraining or additional training is needed;
(ii) The skills which the veteran developed in training for an occupation in which he or she was employed are no longer adequate to maintain employment in that field and a period of retraining is needed;
(iii) The veteran’s service-connected disability has worsened to the point that he or she is unable to perform the duties of the occupation for which the veteran has been trained, and a period of training in the same or different field is required;
(iv) The occupation in which the veteran previously completed training is found to be unsuitable due to the veteran’s abilities and employment handicap.
(5) The assistance to be provided in excess of 48 months consists, only of a period of employment assistance. (see § 21.73).
(d) Approval of extension beyond 48 months. All extensions of a rehabilitation program beyond 48 months of total entitlement under all Department of Veterans Affairs programs requires the approval of the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) and concurrence of the Veteran Readiness and Employment (VR&E) Officer. Concurrence of the VR&E officer is not required for an extension due to provision of employment assistance (see § 21.21).
§ 21.79 Determining entitlement usage under Chapter 31.
(a) General. The determination of entitlement usage for chapter 31 participants is made under the provisions of this section except as provided in paragraph (f) of this section. Charges for entitlement usage shall be based upon the principle that a veteran who pursues a rehabilitation program for 1 day should be charged 1 day of entitlement. The determination of entitlement is based upon the rate at which the veteran pursues his or her rehabilitation program. The rate of pursuit is determined under the provisions of § 21.310 of this part.
(b) No charge against chapter 31 entitlement. No charge will be made against chapter 31 entitlement under any of the following circumstances:
(1) The veteran is receiving employment services under an Individualized Employment Assistance Plan (IEAP);
(2) The veteran is receiving an employment adjustment allowance; or
(3) The veteran is on leave from his or her program, but leave is not authorized by the Department of Veterans Affairs.
(c) Periods during which entitlement may be charged. Charges for usage of chapter 31 entitlement may only be made for program participants in one of the following case statuses:
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; or
(3) Independent living.
(d) Method of charging entitlement under chapter 31. The Department of Veterans Affairs will make a charge against entitlement:
(1) On the basis of total elapsed time (1 day of entitlement for each day of pursuit) if the veteran is being provided a rehabilitation program on a full-time basis;
(2) On the basis of a proportionate rate of elapsed time if the veteran is being provided a rehabilitation program on a three-quarter, one-half or less than one-half time basis. Entitlement is charged at a:
(i) Three-quarter time rate if pursuit is three-quarters or more, but less than full-time;
(ii) One-half time rate if pursuit is half-time or more, but less than three-quarter time;
(iii) One-quarter time rate if pursuit is less than half-time. Measurement of pursuit on a one-quarter time basis is limited to veterans in independent living or extended evaluation programs.
(e) Computing entitlement. (1) The computation of entitlement is based upon the rate of program pursuit, as determined under § 21.310 of this part, over the elapsed time during which training and rehabilitation services were furnished;
(2) The Department of Veterans Affairs will compute elapsed time from the commencing date of the rehabilitation program as determined under § 21.322 of this part to the date of termination as determined under § 21.324 of this part. This includes the period during which veterans not receiving subsistence allowance because of a statutory bar; e.g., certain incarcerated veterans or servicepersons in a military hospital, nevertheless, received other chapter 31 services and assistance. Elapsed time includes the total period from the commencing date until the termination date, except for any period of unauthorized leave;
(3) If the veteran’s rate of pursuit changes after the commencing date of the rehabilitation program, the Department of Veterans Affairs will:
(i) Separate the period of rehabilitation program services into the actual periods of time during which the veteran’s rate of pursuit was different; and
(ii) Compute entitlement based on the rate of pursuit for each separate elapsed time period.
(f) Special situations. (1) When a chapter 31 participant elects benefits of the kind provided under chapter 30 or chapter 34 as a part of his or her rehabilitation program under chapter 31, the veteran’s entitlement usage will be determined by using the entitlement provisions of those programs. Entitlement charges shall be in accordance with § 21.7076 for chapter 30 and § 21.1045 under chapter 34. The entitlement usage computed under these provisions is deducted from the veteran’s chapter 31 entitlement. No entitlement charges are made against either chapter 30 or chapter 34.
(2) When a chapter 31 participant elects to receive payment of the Post-9/11 subsistence allowance under § 21.260(c) in lieu of a subsistence allowance under § 21.260(b), the entitlement usage is deducted from the veteran’s chapter 31 entitlement. No entitlement charges are made against chapter 33.
(3) When a veteran is pursuing on-job training or work experience in a Federal agency on a nonpay or nominal pay basis, the amount of entitlement used is determined in the following manner:
(i) Entitlement used in on-job training in a Federal agency on a nonpay or nominal pay basis is determined in the same manner as other training.
(ii) Entitlement used in pursuing work experience will be computed in the same manner as for veterans in on-job training except that work experience may be pursued on a less than full-time basis. If the veteran is receiving work experience on a less than full-time basis, entitlement charges are based upon a proportionate amount of the workweek. For example, if the workweek is 40 hours, three-quarter time is at least 30 hours, but less than 40 hours, and half-time is at least 20 hours but less than 30 hours.
(4) Entitlement is charged on a full-time basis for a veteran found to have a reduced work tolerance.
(g) Overpayment. The Department of Veterans Affairs will make a charge against entitlement for an overpayment of subsistence allowance under the conditions described in § 21.1045(h) of this part.
Individualized Written Rehabilitation Plan
§ 21.80 Requirement for a rehabilitation plan.
(a) General. An IWRP (Individualized Written Rehabilitation Plan) will be developed for each veteran eligible for rehabilitation services under Chapter 31. The plan is intended to assist in:
(1) Providing a structure which allows Veteran Readiness and Employment (VR&E) staff to translate the findings made in the course of the initial evaluation into specific rehabilitation goals and objectives;
(2) Monitoring the veteran’s progress in achieving the rehabilitation goals established in the plan;
(3) Assuring the timeliness of assistance by Department of Veterans Affairs staff in providing services specified in the plan; and
(4) Evaluating the effectiveness of the planning and delivery of rehabilitation services by VR&E staff.
(b) When a plan is prepared. A plan will be prepared in each case in which a veteran will pursue:
(1) A vocational rehabilitation program, as that term is defined in § 21.35(i);
(2) An extended evaluation program;
(3) An independent living services program; or
(4) An employment program.
(c) Plan – a generic term. The term plan refers to the IWRP (Individualized Written Rehabilitation Plan) § 21.84, IEEP (Individualized Extended Evaluation Plan) § 21.86, IEAP (Individualized Employment Assistance Plan) § 21.88, and IILP (Individualized Independent Living Plan) § 21.90.
(d) Plan not required. A plan will not be prepared for a veteran who is not eligible for any assistance under Chapter 31. Department of Veterans Affairs staff, with the veteran’s assistance and cooperation, will utilize information developed in the course of an initial evaluation to assist the veteran to develop alternatives for education and training, independence in daily living, or employment assistance. This assistance should help the veteran in achieving attainable vocational, independent living and employment goals utilizing benefits and services for which the veteran may be eligible under other Department of Veterans Affairs or non-Department of Veterans Affairs programs.
§ 21.82 Completing the plan under Chapter 31.
(a) Serious employment handicap. Each plan for a veteran with a serious employment handicap shall provide for completion of the program provided by the plan under Chapter 31. The provisions of § 21.70 and § 21.78(c) are designed to enable a veteran with a serious employment handicap to pursue and complete a rehabilitation plan under Department of Veterans Affairs auspices. These provisions shall be used as necessary to accomplish the goals of the plan.
(b) Employment handicap. A plan for a veteran with an employment handicap that is not a serious employment handicap shall require that the program be completed within 48 months, if the veteran is not eligible for an extension as provided in § 21.78. When the program provided by the plan cannot be completed under Chapter 31 because of limitations imposed by the veteran’s termination date or months of remaining entitlement, realistic, comprehensive and detailed arrangements must be made which will enable the veteran to successfully complete training under other auspices. If an arrangement cannot be made which meets these requirements, the long-range vocational goal of the veteran must be reevaluated, and another vocational goal selected which can be completed using the veteran’s remaining Chapter 31 resources.
(c) Employment assistance when training is not completed under Chapter 31. A plan for employment assistance may be implemented even though the veteran’s training has not been or will not be completed under Chapter 31.
§ 21.84 Individualized written rehabilitation plan.
(a) Purpose. The purposes of the IWRP (Individualized Written Rehabilitation Plan) are to:
(1) Identify goals and objectives to be achieved by the veteran during the period of rehabilitation services that will lead to the point of employability;
(2) Plan for placement of the veteran in the occupational field for which training and other services will be provided; and
(3) Specify the key services needed by the veteran to achieve the goals and objectives of the plan.
(b) Elements of the plan. A plan will include the following:
(1) A statement of long-range rehabilitation goals. Each statement of long-range goals shall include at a minimum:
(i) One vocational goal for a veteran with an employment handicap; or
(ii) One vocational goal and, if applicable, one independent living goal for a veteran with a serious employment handicap.
(2) Intermediate rehabilitation objectives; Intermediate objectives are statements of achievement expected of the veteran to attain the long-range goal. The development of appropriate intermediate objectives is the cornerstone of an effective plan. Intermediate objectives should have the following characteristics:
(i) The activity specified relates to the achievement of the goal;
(ii) The activity specified is definable in terms of observable behavior (e.g., pursuing an A.A. degree);
(iii) The activity has a projected completion date;
(iv) The outcome desired upon completion is measurable (e.g., receiving an A.A. degree).
(3) The specific services to be provided by the Department of Veterans Affairs as stated. Counseling shall be included in all plans for a veteran with a serious employment handicap.
(4) The projected starting and completion dates of the planned services and the duration of each service;
(5) Objective criteria and an evaluation procedure and schedule for determining whether the objectives and goals are being achieved as set forth; and
(6) The name, location, and phone number of the VBA case manager.
§ 21.86 Individualized extended evaluation plan.
(a) Purpose. The purpose of an IEEP is to identify the services needed for the VA to determine the veteran’s current ability to achieve a vocational goal when this cannot reasonably be determined during the initial evaluation.
(b) Elements of the plan. An IEEP shall include the same elements as an IWRP except that:
(1) The long range goal shall be to determine achievement of a vocational goal is currently reasonably feasible;
(2) The intermediate objectives relate to problems of questions which must be resolved for the VA to determine the current reasonable feasibility of achieving a vocational goal.
§ 21.88 Individualized employment assistance plan.
(a) Purpose. The purpose of the IEAP (Individualized Employment Assistance Plan) is to assure that a comprehensive, thoughtful approach is taken, enabling eligible veterans to secure suitable employment.
(b) Requirement for a plan. An IEAP will be prepared:
(1) As part of an IWRP; or
(2) When the veteran is eligible for employment assistance under provisions of § 21.47.
(c) Elements of the plan. The IEAP shall follow the same structure as the IWRP. Each IEAP will include full utilization of community resources to enable the veteran to:
(1) Secure employment; and
(2) Maintain employment.
(d) Preparation of the IEAP. Preparation of the IEAP will be completed:
(1) No later than 60 days before the projected end of the period of rehabilitation services leading to the point of employability; or
(2) Following initial evaluation when employment services constitute the whole of the veteran’s program under provisions of § 21.47.
§ 21.90 Individualized independent living plan.
(a) Purpose. The purpose of the IILP is to identify the steps through which a veteran, whose disabilities are so severe that a vocational goal is not currently reasonably feasible, can become more independent in daily living within the family and community.
(b) Elements of the plan. The IILP shall follow the same structure as the IWRP. The plan will include:
(1) Services which may be provided under Chapter 31 to achieve independence in daily living;
(2) Utilization of programs with a demonstrated capacity to provide independent living services for severely handicapped persons;
(3) Services provided under other Department of Veterans Affairs and non-Department of Veterans Affairs programs needed to achieve the goals of the plan;
(4) Arrangements for maintaining the improved level of independence following completion of the plan.
§ 21.92 Preparation of the plan.
(a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.
(b) Approval of the plan. The terms and conditions of the plan must be approved and agreed to by the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC), the vocational rehabilitation specialist, and the veteran.
(c) Implementation of the plan. The vocational rehabilitation specialist or CP or VRC designated as case manager has the primary role in carrying out Department of Veterans Affairs responsibility for implementation of the plan.
(d) Responsible staff. The CP or VRC has the primary responsibility for the preparation of plans.
§ 21.94 Changing the plan.
(a) General. The veteran, the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) or the vocational rehabilitation specialist may request a change in the plan at any time.
(b) Long-range goals. A change in the statement of a long-range goal may only be made following a reevaluation of the veteran’s rehabilitation program by the CP or VRC. A change may be made when:
(1) Achievement of the current goal(s) is no longer reasonably feasible; or
(2) The veteran’s circumstances have changed or new information has been developed which makes rehabilitation more likely if a different long-range goal is established; and
(3) The veteran fully participates and concurs in the change.
(c) Intermediate objectives or services. A change in intermediate objectives or services provided under the plan may be made by the case manager when such change is necessary to carry out the statement of long-range goals. The veteran must concur in the change.
(d) Minor changes. Minor changes in the plan (e.g., changing the date of a scheduled evaluation) by the case manager may be made without the participation and concurrence of the veteran.
(e) Changes in duration of the plan. Any change in the total duration of a veteran’s rehabilitation plan is subject to provisions on duration of a rehabilitation program described in §§ 21.70-21.78.
§ 21.96 Review of the plan.
(a) General. The veteran’s progress in reaching the goals of the plan will be reviewed and evaluated as scheduled in the plan by the case manager and the veteran.
(b) Comprehensive review required. The case manager and the veteran will review all of the terms of the plan and the veteran’s progress at least every twelve months. On the basis of such review the veteran and the case manager will agree whether the plan should be:
(1) Retained in its current form;
(2) Amended; or
(3) Redeveloped.
Counseling
§ 21.100 Counseling.
(a) General. A veteran requesting or being furnished assistance under Chapter 31 shall be provided professional counseling services by Veteran Readiness and Employment (VR&E) Service and other staff as necessary to:
(1) Carry out an initial evaluation in each case in which assistance is requested;
(2) Develop a rehabilitation plan or plan for employment services in each case in which the veteran is found during the initial evaluation to be eligible and entitled to services;
(3) Assist veterans found ineligible for services under Chapter 31 to the extent provided in § 21.82; and
(4) Try to overcome problems which arise during the course of the veteran’s rehabilitation program or program of employment services.
(b) Types of counseling services. VA will furnish comprehensive counseling services, including but not limited to
(1) Psychological;
(2) Vocational;
(3) Personal adjustment;
(4) Employment;
(5) Educational.
(c) Qualifications. Counseling services may only be furnished by VA or other personnel who meet requirements established under provisions of § 21.380 and other policies of the VA pertaining to the qualifications of staff providing assistance under Chapter 31.
(d) Limitations. (1) If a veteran resides within a State, counseling services necessary to carry out the initial evaluation and the development of a rehabilitation plan or a program of employment services will be furnished by Counseling Psychologists (CP) or Vocational Rehabilitation Counselors (VRC) in the VR&E Division;
(2) If a veteran does not reside in a State the counseling services necessary to carry out an initial evaluation may be accomplished in the same manner as for a veteran residing in a State or through other arrangements when deemed appropriate by the VR&E Division. These alternative arrangements include, but are not limited to:
(i) Use of counseling centers or individual qualified professionals under contract to VA; and
(ii) Professional staff of other Federal agencies located in the area in which the veteran resides.
(3) Alternative arrangements to provide counseling are subject to the following requirements:
(i) All arrangements must be consistent with the provisions of paragraph (c) of this section regarding utilization of professionally qualified persons to provide counseling services during the initial evaluation;
(ii) All determinations of eligibility, entitlement and the development of a rehabilitation plan will continue to be made by a CP or VRC in the VR&E Division.
(4) If a CP or VRC in the VR&E Division determines that the evidence of record is insufficient to carry out an initial evaluation in a case in which alternative arrangements were used, VA staff may authorize the veteran to travel to a VA facility to complete the evaluation.
(e) Definition. For the purposes of this section, the term State means each of the several States, the District of Columbia, and the Commonwealth of Puerto Rico.
Educational and Vocational Training Services
§ 21.120 Educational and vocational training services.
(a) Purposes. The purposes of providing educational and vocational training services are to enable a veteran eligible for, and entitled to, services and assistance under Chapter 31 to:
(1) Meet the requirements for employment in the occupational objective established in the IWRP (Individualized Written Rehabilitation Plan);
(2) Provide incidental training which is necessary to achieve the employment objective in the IEAP (Individualized Employment Assistance Plan);
(3) Provide incidental training needed to achieve the goals of an IILP (Individualized Independent Living Plan); or
(4) Provide training services necessary to implement an IEEP (Individualized Extended Evaluation Plan).
(b) Selection of courses. VA will generally select courses of study and training, completion of which usually results in a diploma, certificate, degree, qualification for licensure, or employment. If such courses are not available in the area in which the veteran resides, or if they are available but not accessible to the veteran, other arrangements may be made. Such arrangements may include, but are not limited to:
(1) Relocation of the veteran to another area in which necessary services are available, or
(2) Use of an individual instructor to provide necessary training.
(c) Charges for education and training services. The cost of education and training services will be one of the factors considered in selecting a facility when:
(1) There is more than one facility in the area in which the veteran resides which:
(i) Meets requirements for approval under §§ 21.292 through 21.298;
(ii) Can provide the education and training services, and other supportive services specified in the veteran’s plan; and
(iii) Is within reasonable commuting distance; or
(2) The veteran wishes to train at a suitable facility in another area, even though training can be provided at a suitable facility in the area in which the veteran resides.
§ 21.122 School course.
(a) Explanation of terms – schools, educational institution, and institution. These terms mean any public or private school, secondary school, vocational school, correspondence school, business school, junior college, teacher’s college, college, normal school, professional school, university, scientific or technical institution, or other institution furnishing education for adults.
(b) Course. A course generally consists of a number of areas of subject matter which are organized into learning units for the purpose of attaining a specific educational or vocational objective. Organized instruction in the units comprising the course is offered within a given period of time and credit toward graduation or certification is generally given.
(c) School course. A school course is a course as defined in paragraph (b) of this section offered by a facility identified in paragraph (a) of this section.
§ 21.123 On-job course.
(a) Training establishment. This term means any establishment providing apprentice or other training on the job, including those under the supervision of a college or university or any State department of education, or any state apprenticeship agency, or any State board of vocational education, or any joint apprenticeship committee, or the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. Chapter 4C, or any agency of the Federal government authorized to supervise such training.
(b) On-job course, An on-job course is pursued toward a specified vocational objective, provided by a training establishment. The trainee learns, in the course of work performed under supervision, primarily by receiving formal instruction, observing practical demonstration of work tasks, and assisting in those tasks. Productive work should gradually increase with greater independence from formal instruction as the course progresses.
§ 21.124 Combination course.
(a) General. A combination course is a course which combines training on the job with training in school. For the purpose of VA vocational rehabilitation, a course will be considered to be a combination course, if the student spends full-time on the job and one or more times a week also attends school on a part-time basis. A veteran may pursue the components of a combination course in the following manner:
(1) Concurrent school and on-job training;
(2) Primarily on-job with some related instruction in school;
(3) In a school as a preparatory course to entering on-job training; or
(4) First training on-job followed by the school portion.
(b) Cooperative course. A cooperative course is a special type of combination course which usually:
(1) Has an objective which the student attains primarily through school instruction with the on-job portion being supplemental to the school course;
(2) Is at the college or junior college level although some cooperative courses are offered at post-secondary schools which do not offer a college degree or at secondary schools;
(3) Requires the student to devote at least one-half of the total training period to the school portion of the course; and
(4) Includes relatively long periods each of training on the job and in school such as a full term in school followed by a full term on the job.
§ 21.126 Farm cooperative course.
(a) Definition. An approvable farm cooperative course is a full-time course designated to restore employability by training a veteran to:
(1) Operate a farm which he or she owns or leases; or
(2) Manage a farm as the employee of another.
(b) Reaching the goal of a farm cooperative course. The farm cooperative course must enable a veteran to become proficient in the type of farming for which he or she is being provided rehabilitation services. The areas in which proficiency is to be established include:
(1) Planning;
(2) Producing;
(3) Marketing;
(4) Maintaining farm equipment;
(5) Conserving farm resources;
(6) Financing the farm;
(7) Managing the farm; and
(8) Keeping farm and home accounts.
(c) Instruction, including organized group instruction. Instruction in a farm cooperative course may be by a mixture of organized group (classroom) instruction and individual instruction or by individual instruction alone. A course which includes organized group instruction must meet the following criteria to be considered as full-time:
(1) The number of clock hours of instruction which should be provided yearly shall meet the requirements of § 21.310(a)(4) and § 21.4264 pertaining to full-time pursuit of a farm cooperative course:
(2) The individual instructor portion of a farm cooperative course shall include at least 100 hours of individual instruction per year.
(d) Instruction given solely by an individual instructor. (1) Instruction in a farm cooperative course may be given solely by an individual instructor if organized group instruction is:
(i) Not available within reasonable commuting distance of the veteran’s farm; or
(ii) The major portion of the organized group instruction that is available does not have a direct relation to the veteran’s farming operation and pertinent VA records are fully and clearly documented accordingly.
(2) To be considered full-time pursuit the individual instruction provided in these course must:
(i) Consist of at least 200 hours of instruction per year;
(ii) Be given by a fully qualified individual instructor by contract between VA and the instructor or an educational agency which employs the instructor.
(e) Plan requirements for farm operator or farm manager. (1) The plan for training developed by the case manager and the veteran in collaboration with the instructor must include:
(i) A complete written survey including but not limited to the areas identified in § 21.298 (a) and (b);
(ii) An overall, long-term plan based upon the survey of the operation of the farm;
(iii) An annual plan identifying the part of the overall plan to be implemented which will be prepared before the beginning of each crop year; and
(iv) A detailed individual training program showing the kind and amount of instruction, classroom and individual, or individual; and
(2) The farm must meet the requirements for selecting a farm found in § 21.298.
§ 21.128 Independent study course.
A veteran may pursue a course by independent study under the following conditions:
(a) College level. The course is offered by a college or university.
(b) College degree. The course leads to or is fully creditable towards a standard college degree.
(c) Course content. The course consists of a prescribed program of study with provision for interaction between the student and regularly employed faculty of the university or college by mail, telephone, personally, or class attendance.
(d) School responsibility. The university or college:
(1) Evaluates the course in semester or quarter hours or the equivalent; and
(2) Prescribes a period for completion.
§ 21.129 Home study course.
(a) Definition. A home study course is a course conducted by mail, consisting of a series of written lesson assignments furnished by a school to the student for study and preparation of written answers, solutions to problems, and work projects which are corrected and graded by the school and returned to the trainee.
(b) Limitations on inclusion of home study courses, in rehabilitation plans. A veteran and his or her case manager may include a home study course in a rehabilitation plan only when it supplements the major part of the program. The purpose of the home study course is to provide the veteran with theory or technical information directly related to the practice of the occupation for which the veteran is training.
§ 21.130 Educational and vocational courses outside the United States.
(a) General. VA may provide educational and vocational courses outside a State if the case manager determines that such training is in the best interest of the veteran and the Federal Government.
(b) Specific conditions. (1) The training must be necessary to enable the veteran to qualify for, obtain, and retain suitable employment in the occupational objective; and
(2) Either:
(i) The training is not available in the United States; or
(ii) The training is available in the United States, but personal hardship would result from requiring that the veteran pursue training in this country; and
(3) All necessary supportive and follow-up services, including medical care and treatment and employment services, reasonably can be provided by or through VA, considering such factors as the availability, accessibility and cost of such services.
§ 21.132 Repetition of the course.
(a) Repeating all or part of the course. A veteran, having completed a course under Chapter 31 according to the standards and practices of the institution, ordinarily will not pursue it again at the expense of VA. However, VA may approve repetition of all, or any part of the course when VA determines that the repetition is necessary to accomplish the veteran’s vocational rehabilitation. A veteran repeating a course under Chapter 31 is subject to the same requirements for satisfactory pursuit and completion of the course as are other veterans taking the course unless a longer period is needed because of the veteran’s reduced work tolerance.
(b) Review course. A veteran who has completed a course of training under Chapter 31 may pursue a review course, such as a bar review course, if it is specifically organized and conducted as a review course.
(c) Auditing a subject. Auditing, as defined in § 21.4200(i), may not be authorized as a part of any rehabilitation plan. However, if an individual repeats a course under the conditions described in paragraph (a) of this section, the course shall not be considered an audited course, if pursued in the same manner as a subject offered for credit. The individual must meet the same requirements as other students, and not be a mere listener.
§ 21.134 Limitation on flight training.
Flight Training approved under chapter 31 may only be authorized in degree curriculums in the field of aviation that include required flight training. This type of training is otherwise subject to the same limitations as are applicable to flight training under Chapter 30.
Special Rehabilitation Services
§ 21.140 Evaluation and improvement of rehabilitation potential.
(a) General. The purposes of these services are to:
(1) Evaluate if the veteran:
(i) Has an employment handicap;
(ii) Has a serious employment handicap; and
(iii) Is reasonably feasible for a vocational goal or an independent living goal.
(2) Provide a basis for planning:
(i) A program of services and assistance to improve the veteran’s potential for vocational rehabilitation or independent living;
(ii) A suitable vocational rehabilitation program; or
(iii) A suitable independent living program.
(3) Reevaluate the vocational rehabilitation or independent living potential of a veteran participating in a rehabilitation program under Chapter 31, as necessary.
(4) Enable a veteran to achieve:
(i) A vocational goal; or
(ii) An independent living goal.
(b) Periods during which evaluation and improvement services may be provided. Evaluation and improvement services may be provided concurrently, whenever necessary, with a period of rehabilitation services, including:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation:
(3) Rehabilitation to the point of employability:
(4) A program of independent living services: or
(5) Employment services, incidental to obtaining or maintaining employment.
(c) Duration of full-time assistance. If evaluation and improvement services are furnished on a full-time basis as a preliminary part of the period of rehabilitation to the point of employability, or as the vocational rehabilitation program, the duration of such assistance may not exceed 12 months, except as provided in § 21.74(c).
(d) Scope of services. Evaluation and improvement services include:
(1) Diagnostic services;
(2) Personal and work adjustment training;
(3) Medical care and treatment;
(4) Independent living services;
(5) Language training, speech and voice correction, training in ambulation, and one-hand typewriting;
(6) Orientation, adjustment, mobility and related services; and
(7) Other appropriate services.
§ 21.142 Adult basic education.
(a) Definition. The term adult basic education means an instructional program for the undereducated adult planned around those basic and specific skills most needed to help him or her to function adequately in society.
(b) Purposes. The purposes of providing adult basic education are to:
(1) Upgrade a veteran’s basic educational skills;
(2) Provide refresher training; or
(3) Remedy deficiencies which prevent the veteran from undertaking a course of education or vocational training.
(c) Periods during which basic adult education may be provided. Basic adult education may be authorized, as necessary, during;
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; and
(3) Independent living services.
§ 21.144 Vocational course in a sheltered workshop or rehabilitation facility.
(a) General. A vocational course in a sheltered workshop or rehabilitation facility may be an institutional, on-job, or combination course which has been modified to facilitate successful pursuit by a person with a disability that would otherwise prevent or impair the person’s participation in the course.
(b) Authorization. A vocational course in a sheltered workshop or rehabilitation facility may be authorized when the training offered is a sound method of restoring a veteran’s employability.
§ 21.146 Independent instructor course.
(a) Definition. An independent instructor course is a full-time course of vocational training which the veteran pursues with an individual instructor, who, independently of a training institution or on-job training establishment, furnishes and conducts a vocational course at a suitable place of training.
(b) Limitations on including an independent instructor course in a rehabilitation plan. A veteran and his or her case manager may include an independent instructor course in a rehabilitation plan, other than one involving a farm cooperative program, only when either or both of the following conditions exist:
(1) Training is not available through an established school, on-job training establishment, rehabilitation facility or sheltered workshop within a reasonable commuting distance from the veteran’s home; or
(2) The veteran’s condition or other circumstances do not permit the veteran to attend an otherwise suitable facility within commuting distance. See § 21.126.
(c) Training in the home. Training in the home is a specialized type of independent instructor course which the veteran pursues in his or her home if:
(1) He or she is unable to pursue training at an otherwise suitable facility because of the effects of his or her disability;
(2) Based on proper medical opinion, the veteran is able to pursue the prescribed training; and
(3) The veteran’s home provides a favorable educational environment with adequate work and study space.
(d) Planning an individual instructor course. The case manager, the veteran, and the instructor should jointly plan the training program for a veteran for whom an independent instructor course is prescribed.
(e) Assuring employment. Since the customary channels leading to employment may not be readily available to a veteran requiring an individual instructor course, the IEAP (Individual Employment Assistance Plan) shall indicate thorough consideration of plans and prospects for seeking and obtaining employment, including self-employment, upon completion of training.
(f) Rate of pursuit. A veteran in an independent instructor program shall pursue training at a rate comparable to the rate at which similar training is pursued on an institutional basis, unless the veteran’s work tolerance is reduced by the effects of his or her disability.
§ 21.148 Tutorial assistance.
(a) General. A veteran may be provided individualized tutorial assistance, if VA determines that special assistance beyond that ordinarily given by the facility to students pursuing the same or a similar subject is needed to correct a deficiency in a subject.
(b) Authorization of tutorial assistance. Tutorial assistance may be provided during any period of rehabilitation services authorized by VA.
(c) Use of relatives precluded. Tutorial assistance at VA expense may not be provided by a relative of the veteran. The term relative has the same meaning as under § 21.374 pertaining to the use of a relative as an attendant.
(d) Payment at the Chapter 30 rate. If a veteran has elected payment at the educational assistance rate payable under Chapter 30, he or she may not be provided individualized tutorial assistance under provision of Chapter 31. (See § 21.334.)
§ 21.150 Reader service.
(a) Limitations on vision. A veteran considered to have a visual impairment necessitating reader service includes a veteran:
(1) Whose best corrected vision is 20/200 in both eyes;
(2) Whose central vision is greater than 20/200 but whose field of vision is limited to such an extent that the widest diameter of a visual field subtends to an angle no greater than 20 degrees; or
(3) With impaired vision, whose condition or prognosis indicates that the residual sight will be adversely affected by the use of his or her eyes for reading.
(b) Periods during which reader service may be provided. reader service necessary to the development of a rehabilitation plan, or the successful pursuit of a rehabilitation program may be provided during:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services; or
(5) Employment services, including an initial employment period of up to three months.
(c) Reader responsibility. The reader should be able to do more than read to the veteran. The reader should have an understanding of the subject matter based upon prior training or experience which allows him or her to:
(1) Read printed material with understanding; and
(2) Test the veteran’s understanding of what has been read.
(d) Extent of service. The number of hours of service will be determined in each case by the amount of reading necessitated by the course and the efficacy of other equipment with which the veteran has been furnished to enable him or her to read printed material unassisted.
(e) Recording. VA will not normally pay for recording textbooks or other materials as a part of reader services, since excellent recording services are provided by volunteer organizations at no cost.
(f) Selecting a relative as a reader. Utilization of a relative of the veteran as a reader is subject to the limitations on use of a relative as an attendant under § 21.374.
§ 21.152 Interpreter service for the hearing impaired.
(a) General. The main purpose of interpreter service for the hearing impaired is to facilitate instructor-student communication. VA will provide interpreter service as necessary for the development and pursuit of a rehabilitation program. This service will be provided if:
(1) A VA physician determines that:
(i) The veteran is deaf or his or her hearing is severely impaired; and
(ii) All appropriate services and aids have been furnished to improve the veteran’s residual hearing; or
(2) A VA physician determines that the veteran:
(i) Can benefit from language and speech training; and
(ii) Agrees to undertake language and speech training.
(b) Periods during which interpreter service may be provided. Interpreter service may be furnished during:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services; or
(5) Employment services, including the first three months of employment.
(c) Selecting the interpreter. Only certified interpreters or persons meeting generally accepted standards for interpreters shall provide interpreter service. When an individual is not certified by a State or professional association, VA shall seek the assistance of a State certifying agency or a professional association in ascertaining whether the individual is qualified to serve as an interpreter.
(d) Relatives. Interpreter service at VA expense may not be provided by a relative of the veteran. The term relative has the same meaning as under § 21.374 pertaining to the use of relatives as attendants.
§ 21.154 Special transportation assistance.
(a) General. A veteran, who because of the effects of disability has transportation expenses in addition to those incurred by persons not so disabled, shall be provided a transportation allowance to defray such additional expenses. The assistance provided in this section is in addition to provisions for interregional and intraregional travel which may be authorized under provisions of §§ 21.370 through 21.376.
(b) Periods during which special transportation allowance may be provided. A special transportation allowance may be provided during:
(1) Extended evaluation;
(2) Rehabilitation to the point of employability;
(3) Independent living services; or
(4) Employment services, including the first three months of employment.
(c) Scope of transportation assistance. (1) Transportation assistance includes mileage, parking fees, reasonable fee for a driver, transportation furnished by a rehabilitation facility or sheltered workshop, and other reasonable expenses which may be incurred in local travel;
(2) The veteran’s monthly transportation allowance may not exceed the lesser of actual expenses incurred or one-half of the subsistence allowance of a single veteran in full-time institutional training, unless extraordinary arrangements, such as transportation by ambulance, are necessary to enable a veteran to pursue a rehabilitation program.
(d) Determining the need for a transportation allowance. The case manager will determine the need for a transportation allowance. The assistance of a medical consultant shall be utilized, as necessary, to determine the need for special transportation assistance and to develop transportation arrangements which do not unduly tax the veteran’s ability to travel and pursue a rehabilitation program.
(e) Use of a relative precluded. A relative of the veteran may not be paid any part of a special transportation allowance. The term relative has the same meaning as under § 21.374 pertaining to the use of a relative as an attendant.
§ 21.155 Services to a veteran’s family.
(a) General. VA shall provide services to a veteran’s family which are necessary to the implementation of the veteran’s rehabilitation plan. The term family includes the veteran’s immediate family, legal guardian, or any individual in whose home the veteran certifies an intention to live.
(b) Scope of services to a veteran’s family. The services which may be furnished to the family are generally limited to consultation, homecare training, counseling, and mental health services of brief duration which are designed to enable the family to cope with the veteran’s needs. Extended medical, psychiatric or other services may not be furnished to family members under these provisions.
(c) Providing services to a veteran’s family. Veteran Readiness and Employment (VR&E) Staff will:
(1) Identify services which family members may need to facilitate the rehabilitation of the veteran; and
(2) Arrange for provision of the services which have been identified.
(d) Resources for provision of services to family members. (1) The established program and services which are furnished by Veterans Health Administration (VHA) to family members of veterans eligible for Chapter 31 should be used to the extent practicable; but
(2) If services are not readily available through regular VHA programs, necessary services will normally be secured through arrangements with other public and nonprofit agencies.
§ 21.156 Other incidental goods and services.
(a) General. Other incidental goods and services may be authorized if the case manager determines them to be necessary to implement the veteran’s rehabilitation plan. For example, a calculator may be authorized for a veteran pursuing an engineering degree, even though the veteran may not be required to have a calculator for any specific subject in his or her course, where there is substantial evidence that lack of a calculator places the veteran at a distinct disadvantage in successfully pursuing the course.
(b) Limitation on cost. The costs of incidental goods and services normally should not exceed five percent of training costs for any twelve-month period.
Independent Living Services
§ 21.160 Independent living services.
(a) Purpose. The purpose of independent living services is to assist eligible veterans whose ability to function independently in family, community, or employment is so limited by the severity of disability (service and nonservice-connected) that vocational or rehabilitation services need to be appreciably more extensive than for less disabled veterans.
(b) Definitions. The term independence in daily living means the ability of a veteran, without the services of others or with a reduced level of the services of others, to live and function within the veteran’s family and community.
(c) Situations under which independent living services may be furnished. Independent living services may be furnished:
(1) As part of a program to achieve rehabilitation to the point of employability;
(2) As part of an extended evaluation to determine the current reasonable feasibility of achieving a vocational goal;
(3) Incidental to a program of employment services; or
(4) As a program of rehabilitation services for eligible veterans for whom achievement of a vocational goal is not currently reasonably feasible. This program of rehabilitation services may be furnished to help the veteran:
(i) Function more independently in the family and community without the assistance of others or a reduced level of the assistance of others;
(ii) Become reasonably feasible for a vocational rehabilitation program; or
(iii) Become reasonably feasible for extended evaluation.
(d) Services which may be authorized. The services which may be authorized as part of an IILP (Individualized Independent Living Plan) include:
(1) Any appropriate service which may be authorized for a vocational rehabilitation program as that term is defined in § 21.35(i), except for a course of education or training as described in § 21.120; and
(2) Independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the veteran’s plan including:
(i) Evaluation of independent living potential;
(ii) Training in independent living skills;
(iii) Attendant care;
(iv) Health maintenance programs; and
(v) Identifying appropriate housing accommodations.
(e) Coordination with other VA elements and other Federal, State, and local programs. Implementation of programs of independent living services and assistance will generally require extensive coordination with other VA and non-VA programs. If appropriate arrangements cannot be made to provide these services through VA, other governmental, private nonprofit and for-profit agencies and facilities may be used to secure necessary services if the requirements contained in § 21.294 are met.
§ 21.162 Participation in a program of independent living services.
(a) Approval of a program of independent living services. A program of independent living services and assistance is approved when:
(1) The VA determines that achievement of a vocational goal is not currently reasonably feasible;
(2) The VA determines that the veteran’s independence in daily living can be improved, and the gains made can reasonably be expected to continue following completion of the program;
(3) All steps required by §§ 21.90 and 21.92 of this part for the development and preparation of an Individualized Independent Living Plan (IILP) have been completed; and
(4) The Veteran Readiness and Employment (VR&E) Officer concurs in the IILP.
(b) Considerations for the VR&E Officer. The VR&E Officer will consider the following factors in administering programs providing independent living services:
(1) If VA resources available limit the number of veterans who may be provided a program of independent living services and assistance, the first priority shall be given to veterans for whom the reasonable feasibility of achieving a vocational goal is precluded solely as a result of service-connected disability; and
(2) To the maximum extent feasible, a substantial portion of veterans provided with programs of independent living services and assistance shall be receiving long-term care in VA medical centers and nursing homes.
Case Status
§ 21.180 Case status system.
(a) General. Each veteran’s case will be assigned to a specific case status from the point of initial contact until all appropriate steps in the rehabilitation process have been completed. The case status system will:
(1) Assist Veteran Readiness and Employment (VR&E) staff to fulfill its case management responsibility to provide authorized assistance to enable the veteran to successfully pursue his or her program; and
(2) Assure program management and accountability.
(b) Responsibility for change of case status. The case manager is responsible for assigning a case to the appropriate case status at each point in the rehabilitation process.
(c) Case manager. The VR&E Officer or his or her designee will assign a case manager when the veteran’s case is placed in evaluation and planning status. The VR&E Officer or his or her designee may assign case management responsibility for development and implementation of a rehabilitation plan authorized under Chapter 31 to a Counseling Psychologist (CP), Vocational Rehabilitation Counselor (VRC) or vocational rehabilitation specialist in the VR&E Division. The case manager assigned will, unless replaced by the VR&E Officer, continue to be responsible for case management throughout the course of the veteran’s rehabilitation program. When securing medical care, treatment, and other related services, the VR&E case manager will coordinate with Veterans Health Administration (VHA) staff members who have case management responsibility for the veteran.
(d) Informing the veteran. The veteran will be informed in writing of changes in case status by VA which affect his or her receipt of benefits and services under Chapter 31. The letter to the veteran will include the reason for the change of case status, and other information required under provisions of § 21.420.
(e) Normal progression for eligible veterans. The cases of veterans who are eligible for and entitled to services under Chapter 31 for whom individualized plans have been prepared will generally undergo the following changes of status:
(1) Individualized written rehabilitation plan. A veteran with an IWRP (Individualized Written Rehabilitation Plan) will generally move sequentially from applicant status through evaluation and planning status, rehabilitation to the point of employability status, employment services status, and rehabilitated status.
(2) Individualized extended evaluation plan. A veteran with an IEEP (Individualized Extended Evaluation Plan) will generally move from applicant status through evaluation and planning status to extended evaluation status. Once in extended evaluation status there will generally be a finding which leads to development of an IWRP (paragraph (e)(1) of this section), or IILP (Individualized Independent Living Plan) (paragraph (e)(3) of this section).
(3) Individualized independent living plan. A veteran with an IILP (Individualized Independent Living Plan) will generally move from applicant status through evaluation and planning, extended evaluation, independent living, and rehabilitated status.
(4) Individualized employment assistance plan. (i) A veteran with an IEAP (Individualized Employment Assistance Plan) which is a part of an IWRP will move through the case statuses described in paragraph (e)(1) of this section, or in some cases through the steps in paragraph (e)(2) of this section.
(ii) A veteran for whom only employment services are provided will generally move from applicant through evaluation and planning, employment services to rehabilitated status.
(f) Normal progression for ineligible veterans. A veteran found ineligible for services under Chapter 31 will generally move from applicant to evaluation and planning status, to ineligible status.
(g) Changes of status. The case manager may change the case status when:
(1) Conditions for change specified in the status are met;
(2) The change is not specifically precluded by the status to which change is being considered; and
(3) The change is consistent with provisions of other applicable regulations.
§ 21.182 “Applicant” status.
(a) Purpose. The purposes of applicant status are to:
(1) Process a veteran’s claim for assistance under Chapter 31 in a timely manner; and
(2) Identify service-disabled veterans whom VA should contact individually to increase their awareness and understanding of how they may benefit from services furnished under Chapter 31.
(b) Assignment to applicant status. VA will assign a veteran’s records to applicant status when either:
(1) VA receives a formal or informal application from a veteran for services under Chapter 31; or
(2) The Veteran Readiness and Employment (VR&E) Division:
(i) Advises a veteran in writing of the veteran’s potential eligibility for Chapter 31 services, or
(ii) Is informed that the veteran has been advised in writing of his or her potential eligibility for Chapter 31 services by other VA elements.
(c) Termination of applicant status. Applicant status will be terminated when:
(1) An appointment for an initial evaluation has been kept by the veteran; or
(2) The veteran’s service-connected disability is reduced to a noncompensable degree; or
(3) The veteran’s service-connected disability is severed; or
(4) The veteran’s application is invalid because of fraud or error; or
(5) The veteran withdraws his or her claim, or otherwise indicates that no further assistance is desired.
(d) Transfer of terminated cases to discontinued status. Each instance in which a veteran’s case is terminated for reasons described in paragraph (c)(4) or (5) of this section shall be placed in discontinued status.
See §§ 21.30 Claims, 21.31 Informal claims, and 21.32 Time limits.
§ 21.184 “Evaluation and planning” status.
(a) Purpose. The purpose of evaluation and planning status is to identify veterans for whom evaluation and planning services are needed to:
(1) Accomplish an initial evaluation as provided in § 21.50;
(2) Develop an IWRP (Individualized Written Rehabilitation Plan), IEEP (Individualized Extended Evaluation Plan), IILP (Individualized Independent Living Plan) or IEAP (Individualized Employment Assistance Plan); or
(3) Reevaluate:
(i) Findings made in prior initial evaluations, or
(ii) Current or previous individualized rehabilitation plans.
(b) Assignment to evaluation and planning status. A veteran’s records will be assigned to evaluation and planning status for any of the purposes specified in paragraph (a) of this section.
(c) Termination of evaluation and planning status. The assignment of the veteran’s records to evaluation and planning status may be terminated under the following conditions:
(1) Evaluation and planning completed. The services necessary to complete evaluation and planning have been provided. These services are:
(i) Completion of an initial evaluation;
(ii) Development of an IWRP (Individualized Written Rehabilitation Plan) or other individual rehabilitation plan in those cases in which eligibility and entitlement to services provided under Chapter 31 are established; or
(iii) Completion of reevaluation of prior findings made in initial evaluation or modification of a rehabilitation plan.
(2) Evaluation and planning not completed. The Veteran Readiness and Employment (VR&E) Division shall make every reasonable effort to enable the veteran to complete the evaluation and planning phase of the rehabilitation process. A determination that every reasonable effort by VA has been made, and that little likelihood exists that continued efforts will lead to completion of planning and evaluation, may be made under the following conditions:
(i) The veteran writes VA and requests that his or her case be inactivated;
(ii) The veteran fails to keep scheduled appointments following his or her initial appointment; or
(iii) The veteran otherwise fails to cooperate with VA in the evaluation and planning process. If the veteran fails to cooperate, the provisions of § 21.362 are applicable.
§ 21.186 “Ineligible” status.
(a) Purpose. The purpose of ineligible status is to identify the cases in which a veteran requests services under Chapter 31, but the request is denied by VA, usually, on the basis of information developed when the veteran was in evaluation and planning status.
(b) Assignment to ineligible status. A veteran’s case will be assigned to ineligible status following a finding by VA that the veteran is not eligible for or entitled to services under Chapter 31. The finding must preclude all possible Chapter 31 services.
(c) Termination of ineligible status. The assignment of the veteran’s case to ineligible status should be terminated if the veteran thereafter becomes eligible to receive any Chapter 31 service. Placement of the case in ineligible status is a bar to reconsideration of eligibility unless a material change in circumstances occurs.
§ 21.188 “Extended evaluation” status.
(a) Purpose. The purposes of extended evaluation status are to:
(1) Identify a veteran for whom a period of extended evaluation is needed; and
(2) Assure that necessary services are provided by VA during the extended evaluation.
(b) Assignment to extended evaluation status. A veteran’s case may be assigned or reassigned to extended evaluation status under provisions of § 21.57, § 21.74, § 21.86, § 21.94, or § 21.96.
(c) Continuation in extended evaluation status. A veteran’s case will be in extended evaluation status during periods in which:
(1) The veteran is pending induction into the facility at which rehabilitation services will be provided;
(2) The veteran is receiving rehabilitation services prescribed in the IEEP (§ 21.86); or
(3) The veteran is on authorized leave of absence during an extended evaluation.
(d) Termination of extended evaluation status. A veteran in extended evaluation status will remain in that status until one of the following events occur:
(1) Following notification of necessary arrangements to begin an extended evaluation, the date the extended evaluation begins, and instructions as to the next steps to be taken, the veteran:
(i) Fails to report and does not respond to followup contact by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers induction for a period exceeding 30 days beyond the scheduled date of induction, except where the deferment is due to illness or other sufficient reason;
(2) VA determines the reasonable feasibility of a vocational goal for the veteran before completion of all of the planned evaluation because the decision does not require the further evaluation;
(3) The veteran completes the extended evaluation;
(4) Either the veteran or VA interrupts the extended evaluation;
(5) Either the veteran or VA discontinues the extended evaluation; or
(6) Service-connection for the veteran’s service-connected disability is severed by VA or his or her continued eligibility otherwise ceases.
See §§ 21.57 Extended evaluation, 21.322 Commencing dates, 21.324 Reduction or termination.
§ 21.190 “Rehabilitation to the point of employability” status.
(a) Purpose. The rehabilitation to the point of employability status serves to:
(1) Identify veterans who receive training and rehabilitation services to enable them to attain a vocational goal; and
(2) Assure that services specified in the veteran’s IWRP are provided in a timely manner by VA.
(b) Assignment. A veteran’s case may be assigned or reassigned to rehabilitation to the point of employability status under the provisions of § 21.84, § 21.94, or § 21.96.
(c) Continuation in rehabilitation to the point of employability status. A veteran will be assigned to rehabilitation to the point of employability status during periods in which:
(1) The veteran has progressed through applicant status and evaluation and planning status (including extended evaluation status when appropriate), and is pending induction into the facility at which training and rehabilitation services will be provided;
(2) The veteran is receiving training and rehabilitation services prescribed in the IWRP; or
(3) The veteran is on authorized leave of absence.
(d) Termination of rehabilitation to the point of employability status when goals of the IWRP for this period are achieved. VA will consider a veteran to have completed the period of rehabilitation to the point of employability, and will terminate this status under the following conditions:
(1) The veteran achieves the goals of, and has been provided services specified in, the IWRP;
(2) The veteran who leaves the program has completed a sufficient portion of the services prescribed in the IWRP to establish clearly that he or she is generally employable as a trained worker in the occupational objective established in the IWRP;
(3) The veteran, who has not completed all prescribed services in the IWRP, accepts employment in the occupational objective established in the IWRP with wages and other benefits commensurate with wages and benefits received by trained workers; or
(4) The veteran:
(i) Satisfactorily completes a prescribed program, the practice of which requires pursuing an examination for licensure, but
(ii) Is unable to take the licensure examination prior to the basic twelve-year termination date and there is no basis for extension of that date.
(e) Other conditions for termination of rehabilitation to the point of employability status. In addition to termination under conditions described in paragraph (d) of this section, the classification of the veteran’s records in this status may be terminated under any of the following conditions:
(1) A veteran who has been notified of necessary arrangements to begin the program, the date the program begins and instructions as to the next steps to be taken:
(i) Fails to report and does not respond to initial or subsequent followup by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers induction for a period exceeding 30 days beyond the scheduled beginning date of the program, except where the deferment is due to illness or other sufficient reason.
(2) Either the veteran or VA interrupts the period of rehabilitation to the point of employability;
(3) Either VA or the veteran discontinues the period of rehabilitation to the point of employability;
(4) The veteran reaches his or her termination date, and there is no basis for extension under § 21.44;
(5) The veteran’s entitlement to training and rehabilitation services under Chapter 31 is exhausted, and there is no basis for extension under § 21.78; or
(6) Service-connection for the veteran’s service-connected disability is served by VA or he or she otherwise ceases to be eligible.
(f) Payment of employment adjustment allowance. An employment adjustment allowance will be paid when the veteran’s classification in rehabilitation to the point of employability status is terminated under provisions of paragraph (d) of this section. An employment adjustment allowance will not be paid if termination is for one of the reasons specified in paragraph (e) of this section.
See §§ 21.120 Educational and vocational trainings services, 21.282 Effective date of induction into a rehabilitation program, and 21.284 Reentering into a rehabilitation program.
§ 21.192 “Independent living program” status.
(a) Purpose. The independent living program status serves to:
(1) Identify veterans who are being furnished a program of independent living services by VA; and
(2) Assure that such veterans receive necessary services from VA in a timely manner.
(b) Assignment to independent living program status. A veteran may be assigned or reassigned to independent living program status under the provisions of § 21.88, § 21.94, or § 21.96.
(c) Continuation in independent living program status. A veteran will be in independent living program status during periods in which:
(1) The provisions of § 21.282 for induction into a program are met, but the veteran is pending induction into the facility at which rehabilitation services will be provided;
(2) The veteran receives rehabilitation services prescribed in an IILP; or
(3) The veteran is on authorized leave of absence status.
(d) Termination of independent living program status. When a veteran’s case has been assigned to independent living program status, the case will be terminated from that status, if one of the following occurs:
(1) A veteran, who has been notified of necessary arrangements to begin a program, the date the program begins and instructions as to the next steps to be taken:
(i) Fails to report and does not respond to followup contact by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers entry for more than 30 days beyond the scheduled beginning date, unless the deferment is due to illness or other sufficient reason.
(2) The veteran completes the IILP;
(3) Either the veteran or VA interrupts the program;
(4) Either the veteran or VA discontinues the program; or
(5) Service-connection for the veteran’s service-connected disability is severed by VA or he or she otherwise ceases to be eligible.
See §§ 21.160 Independent living services, 21.282 Effective date of induction into a rehabilitation program, 21.322 Commencing date, and 21.324 Reduction or termination date.
§ 21.194 “Employment services” status.
(a) Purpose. The status employment services serves to:
(1) Identify veterans who are being furnished employment services; and
(2) Assure that these veterans receive necessary services in a timely manner.
(b) Assignment to employment services status. A veteran’s case may be assigned or reassigned to employment services status under the provisions of §§ 21.84, 21.88, and 21.94.
(c) Continuation in employment services status. A case will remain in employment services status for the period specified in the IEAP, subject to the limitations specified in paragraph (d) of this section.
(d) Termination of employment services status. The veteran will continue in employment services status until the earliest of the following events occurs:
(1) He or she is determined to be rehabilitated under the provisions of § 21.283; or
(2) He or she is:
(i) Employed for at least 60 days in employment that does not meet the criteria for rehabilitation contained in § 21.283, if the veteran intends to maintain this employment and declines further assistance; and
(ii) Adjusted to the duties and responsibilities of the job.
(3) Either the veteran or VA interrupts the employment services program;
(4) Either the veteran or VA discontinues the employment services program;
(5) He or she reaches the end of the period for which employment services have been authorized and there is no basis for extension; or
(6) Service-connection for the veteran’s service-connected disability is severed or he or she otherwise ceases to be eligible.
See §§ 21.47 Eligibility for employment assistance, 21.250 Overview of employment services, and 21.326 Authorization of employment services.
§ 21.196 “Rehabilitated” status.
(a) Purpose. The purpose of rehabilitated status is to identify those cases in which the goals of a rehabilitation program or a program of employment services have been substantially achieved.
(b) Assignment to “rehabilitated” status. A veteran’s case shall be assigned to “rehabilitated” status when his or her case meets the criteria for rehabilitation contained in § 21.283.
(c) Termination of rehabilitated status. A veteran’s case will not be removed from rehabilitated status under § 21.284 once that status has been assigned, unless the determination of rehabilitation is set aside for a reason specified in § 21.284.
See § 21.284 Reentrance into a rehabilitation program.
§ 21.197 “Interrupted” status.
(a) Purpose. The purpose of interrupted status is to recognize that a variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted. In each case, VA first must determine that the veteran will be able to return to a rehabilitation program or a program of employment services following the resolution of the situation causing the interruption. This determination will be documented in the veteran’s record.
(b) Assignment to “interrupted” status. A veteran’s case will be assigned to interrupted status when:
(1) VA determines that a suspension of services being provided is necessary; and
(2) Either:
(i) A definite date for resumption of the program is established; or
(ii) The evidence indicates the veteran will be able to resume the program at some future date, which can be approximately established.
(c) Reasons for assignment to “interrupted” status. A veteran’s case may be interrupted and assigned to interrupted status for reasons including but not limited to the following:
(1) Veteran does not initiate or continue rehabilitation process. If a veteran does not begin or continue the rehabilitation process, the veteran’s case will be interrupted and assigned to interrupted status, including:
(i) A case in evaluation and planning status;
(ii) A case in extended evaluation status;
(iii) A case in rehabilitation to the point of employability status;
(iv) A case in independent living program status; or
(v) A case in employment services status.
(2) Unsatisfactory conduct and cooperation. If a veteran’s conduct or cooperation becomes unsatisfactory, services and assistance may be interrupted as determined under provisions of §§ 21.362 and 21.364.
(3) Services not available. The veteran cannot continue the program because the necessary training and rehabilitation services are unavailable.
(4) Prior to assignment to “discontinued” status. A veteran’s case shall be assigned to interrupted status prior to discontinuance and assignment to discontinued status in all cases except as provided in § 21.182(d) and upon the veteran’s death. The purpose of assignment to interrupted status is to assure that all appropriate actions have been taken to help the veteran continue in his or her program before discontinuing benefits and services.
(5) Absences. The veteran is not entitled to be placed on authorized absence under §§ 21.340 through 21.350 while in interrupted status.
(d) Reentrance from “interrupted” status. (1) A veteran in interrupted status may be assigned to his or her prior status or other appropriate status, if he or she reports for entrance or reentrance into the prescribed program at the time and place scheduled for the resumption of the rehabilitation program.
(2) If a veteran in interrupted status fails to report for entrance or reentrance into the program at the appointed time and place, the veteran’s case will remain in interrupted status. The case manager will then determine whether there is a satisfactory reason for the veteran’s failure to enter a new or reenter the prior program. If the evidence of record does not establish a satisfactory reason, the veteran’s case will be discontinued and assigned to discontinued status.
(e) Case management responsibility during a period of interruption. The case manager shall maintain contact with the veteran during interruption and shall arrange for appropriate medical or other services the veteran needs to be able to enter or reenter a rehabilitation program or a program of employment services.
See § 21.324 Reduction or termination date.
§ 21.198 “Discontinued” status.
(a) Purpose. The purpose of discontinued status is to identify situations in which termination of all services and benefits received under Chapter 31 is necessary.
(b) Placement in “discontinued”. VA will discontinue the veteran’s case and assign the case to discontinued status following assignment to interrupted status as provided in § 21.197 for reasons including but not limited to the following:
(1) Veteran declines to initiate or continue rehabilitation process. If a veteran does not initiate or continue the rehabilitation process and does not furnish an acceptable reason for his or her failure to do so following assignment to interrupted status, the veteran’s case will be discontinued and assigned to discontinued status. This includes:
(i) A case in applicant status;
(ii) A case in evaluation and planning status;
(iii) A case in extended evaluation status;
(iv) A case in rehabilitation to the point of employability status;
(v) A case in independent living program status;
(vi) A case in employment services status; or
(vii) A case in interrupted status;
(2) Unsatisfactory conduct and cooperation. When a veteran’s conduct or cooperation becomes unsatisfactory, services and assistance may be discontinued and assigned to discontinued status as determined under provisions of §§ 21.362 and 21.364.
(3) Eligibility and entitlement. Unless the veteran desires employment assistance, the veteran’s case will be discontinued and assigned to discontinued status when:
(i) The veteran reaches the basic twelve-year termination date, and there is no basis for extension; or
(ii) The veteran has used 48 months of entitlement under one or more VA programs, and there is no basis for extension of entitlement.
(4) Medical and related problems. A veteran’s case will be discontinued and assigned to discontinued status when:
(i) The veteran will be unable to participate in a rehabilitation program because of a serious physical or emotional problem for an extended period; and
(ii) VA medical staff are unable to estimate an approximate date by which the veteran will be able to begin or return to the program.
(5) Withdrawal. Veteran voluntarily withdraws from the program.
(6) Failure to progress. The veteran’s case will be discontinued and assigned to discontinued status if his or her failure to progress in a program is due to:
(i) Continuing lack of application by the veteran unrelated to any personal or other problems; or
(ii) Inability of the veteran to benefit from rehabilitation services despite the best efforts of VA and the veteran.
(7) Special review of proposed discontinuance action. The Veteran Readiness and Employment (VR&E) Officer shall review each case in which discontinuance is being considered for a veteran with a service-connected disability rated 50 percent or more disabling. The VR&E Officer may utilize existing resources to assist in the review, including referral to the Vocational Rehabilitation Panel (VRP).
(c) Termination of “discontinued” status. Except as noted in paragraph (c)(3) of this section assignment of the veteran’s case to the same status from which the veteran was discontinued or to a different one requires that VA first find:
(1) The reason for the discontinuance has been removed; and
(2) VA has redetermined his or her eligibility and entitlement under Chapter 31.
(3) In addition to the criteria described in paragraphs (c) (1) and (2) of this section a veteran placed into discontinued status as a result of a finding of unsatisfactory conduct or cooperation under §§ 21.362 and 21.364 must also meet the requirements for reentrance into a rehabilitation program found in § 21.364.
(d) Follow-up of a cases placed in “discontinued” status. VA shall establish appropriate procedures to follow up on cases which have been placed in discontinued status, except in those cases reassigned from applicant status. The purpose of such followup is to determine if:
(1) The reasons for discontinuance may have been removed, and reconsideration of eligibility and entitlement is possible; or
(2) The veteran is employed, and criteria for assignment to rehabilitated status are met.
See § 21.324 Reduction or termination dates of subsistence allowance.
Supplies
§ 21.210 Supplies.
(a) Purpose of furnishing supplies. Supplies are furnished to enable a veteran to pursue rehabilitation and achieve the goals of his or her program.
(b) Definition. The term supplies includes books, tools, and other supplies and equipment which VA determines are necessary for the veteran’s rehabilitation program.
(c) Periods during which supplies may be furnished. Supplies may be furnished during:
(1) Extended evaluation;
(2) Rehabilitation to the point of employability;
(3) Employment services; and
(4) An independent living services program.
(d) Supplies precluded. Notwithstanding the provisions of paragraph (c) of this section, supplies may not be furnished to a veteran who has elected, or is in receipt of, payment at the educational assistance rate paid under Chapter 34.
§ 21.212 General policy in furnishing supplies during periods of rehabilitation.
(a) Furnishing necessary supplies during a period of rehabilitation services. A veteran will be furnished supplies that are necessary for a program of rehabilitation services. For example, a veteran training in a school will be furnished the supplies needed to pursue the school course. If additional supplies are subsequently needed to secure employment, they will be furnished during the period of employment services as provided in § 21.214(d).
(b) Determining supplies needed during a period of rehabilitation. Subject to the provisions of §§ 21.210 through 21.222, VA will authorize only those supplies which are required:
(1) To be used by similarly circumstanced non-disabled persons in the same training or employment situation;
(2) To mitigate or compensate for the effects of the veteran’s disability while he or she is being evaluated, trained or assisted in gaining employment; or
(3) To allow the veteran to function more independently and thereby lessen his or her dependence on others for assistance.
(c) When supplies may be authorized. Supplies should generally be authorized subsequent to the date of enrollment in training or beginning date of other rehabilitation services unless there are compelling reasons to authorize them earlier. Supplies may not be authorized earlier than the date the veteran’s rehabilitation plan is approved by VA and the veteran is accepted by the facility or individual providing services.
(d) Supplies needed, but not specifically required. VA may determine that an item, such as a calculator, while not required by the school for the pursuit of a particular school subject, is nevertheless necessary for the veteran to successfully pursue his or her program under the provisions of § 21.156 pertaining to incidental goods and services. The item may be authorized if:
(1) It is generally owned and used by students pursuing the course; and
(2) Students who do not have the item would be placed at a distinct disadvantage in pursuing the course.
(e) Supplies for special projects and theses. The amount of supplies that VA may authorize for special projects, including theses, may not exceed the amount generally needed by similarly circumstanced nonveterans in meeting course or thesis requirements.
(f) Responsibility for authorization of supplies. The case manager is responsible for the authorization of supplies, subject to requirements for prior approval contained in § 21.258 and other instructions governing payment of program charges.
§ 21.214 Furnishing supplies for special programs.
(a) General. A veteran pursuing one of the following types of vocational rehabilitation programs is eligible for any types of supplies listed in § 21.212. The following paragraphs clarify the applicability of the general provisions of § 21.212 to these special situations.
(b) Supplies furnished to veterans pursuing training in the home. VA may furnish to veterans training in the home:
(1) Books, tools, and supplies which schools or training establishments that train individuals outside the home for the objective the veteran is pursuing at home ordinarily require all students and trainees to personally possess;
(2) Supplies and equipment which are essential to the prescribed course of training because the veteran is pursuing the course at home. Equipment in this category consists of items which ordinarily are not required by a school or training establishment;
(3) Special equipment, such as a vise or drafting table;
(4) Supplies needed to enable the veteran to function more independently in his or her home and community.
(c) Supplies furnished to a veteran in farm cooperative training. The books and related training supplies which VA may furnish a veteran in farm cooperative training depend upon the type of instruction he or she is receiving:
(1) When organized, group instruction is part of a veteran’s course, VA will furnish those books and supplies which the school requires all students in the school portion of the course to own personally or on a rental basis;
(2) When all instruction is given on the veteran’s farm by an individual instructor, VA will furnish to a student only those textbooks and other supplies which would ordinarily be required by a school.
(d) Obtaining and maintaining employment. A veteran being furnished employment services may receive supplies which:
(1) The employer requires similarly circumstanced nonveterans to own upon beginning employment to the extent that the items were not furnished during the period in which the veteran was training for the objective, or the items that were furnished for training purposes are not adequate for employment;
(2) VA determines that special equipment is necessary for the veteran to perform his or her duties, subject to the obligation of the employer to make reasonable accommodation to the disabling effects of the veteran’s condition.
(e) Self-employment. The supplies and related assistance which may be furnished, subject to the requirements prescribed under §§ 21.257 and 21.258, to a veteran for whom self-employment has been approved as the occupational objective, are generally limited to those necessary to begin operations:
(1) Minimum stocks of materials, e.g., inventory of saleable merchandise or goods, expendable items required for day-to-day operations, and items which are consumed on the premises;
(2) Essential equipment, including machinery, occupational fixtures, accessories, and appliances; and
(3) Other related assistance such as business license fees.
(f) Supplies and related assistance which may not be furnished for self-employment. VA may not authorize assistance for:
(1) Purchase of, or part payment for, land and buildings;
(2) Making full or part payment of leases or rentals;
(3) Purchase or rentals of trucks, cars, or other means of transportation;
(4) Stocking a farm for animal husbandry operations.
§ 21.216 Special equipment.
(a) General. Special equipment should be authorized as necessary to enable a veteran to mitigate or overcome the effects of disability in pursuing a rehabilitation program. The major types of special equipment which may be authorized include:
(1) Equipment for educational or vocational purposes. This category includes items which are ordinarily used by nondisabled persons pursuing evaluation or training, modified to allow for use by disabled persons. e.g., calculators with speech capability for blinded persons.
(2) Sensory aids and prostheses. This category includes items which are specifically designed to mitigate or overcome the effects of disability. They range from eyeglasses and hearing aids to closed-circuit TV systems which amplify reading material for veterans with severe visual impairments.
(3) Modifications to improve access. This category includes adaptations of environment not generally associated with education and training, such as adaptive equipment for automobiles or supplies necessary to modify a veteran’s home to make either training or self-employment possible.
(b) Coordination with other VA elements in securing special equipment. In any case in which the veteran needs special equipment and is eligible for such equipment under other VA programs, such as medical care and treatment at VA medical centers, the items will be secured under that program. The veteran must be found ineligible for needed special equipment under other programs and benefits administered by VA before the item may be authorized under Chapter 31.
§ 21.218 Methods of furnishing supplies.
(a) Supplies furnished by the school or facility. VA will make arrangements for the school or other facility furnishing a veteran training, rehabilitation assistance, or employment under Chapter 31 to provide supplies to the extent practicable. This method is the one most likely to assure that supplies are available and can be secured expeditiously. A facility may be considered to be furnishing supplies when the facility itself is the supplier, or the facility has designated a supplier. Prior authorization of supplies by the case manager is required, except for standard sets of books, tools, or supplies which the facility requires all trainees or employees to have.
(b) Issuance of supplies not furnished by the facility. VA will issue authorized supplies directly to the veteran, if the supplies are not furnished by the facility providing training, rehabilitation services, or employment.
See 48 CFR part 831. Contract cost principles and procedures.
§ 21.219 Supplies consisting of clothing, magazines and periodicals, and items which may be personally used by the veteran.
(a) Furnishing protective articles and clothing. Protective articles or apparel worn in place of ordinary clothing will be furnished at VA expense, when the school or training establishment requires similarly circumstanced nonveterans to use the articles of apparel. No other clothing will be supplied.
(b) Furnishing magazines and periodicals. Appropriate past issues of magazines, periodicals, or reprints may be furnished in the same manner as text material, when relevant to the course or training.
(c) Furnishing items which may be personally used. Musical instruments, cameras, or other items which could be used personally by the veteran may only be furnished if required by the facility to meet requirements for degree or course completion.
§ 21.220 Replacement of supplies.
(a) Lost, stolen, misplaced or damaged supplies. VA will replace articles which are necessary to further pursuit of the veteran’s program and which are lost, stolen, misplaced, or damaged beyond repair through no fault of the veteran;
(1) VA will make an advancement from the Vocational Rehabilitation Revolving Fund to a veteran to replace articles for which VA will not pay, if the veteran is without funds to pay for them;
(2) If a veteran refuses to replace an article indispensable to the program after VA determines that its loss or damage was his or her fault, the veteran’s refusal may be considered as noncooperation under § 21.364;
(3) If the veteran’s program is discontinued under provisions of § 21.364(b), he or she will be reentered into the program only when he or she replaces the necessary articles.
(b) Personally purchased supplies. VA will not generally reimburse a veteran who personally buys supplies. VA may pay for the required supplies which a training facility or other vendor sells to a veteran, if the facility chooses to return to the veteran the amounts he or she paid, so that the charges stand as an unpaid obligation of VA to the facility. If the facility does not agree to such an arrangement, VA may still pay the veteran, if the facts and equities of the case are demonstrated.
(c) Supplies used in more than one part of the program. Except as provided in paragraph (a) of this section, VA will generally furnish any nonconsumable supplies only one time, even though the same supplies may be required for use by the veteran in another subject or in another quarter, semester, or school year.
§ 21.222 Release of, and repayment for, training and rehabilitation supplies.
The value of supplies authorized by VA will be repaid under the provisions of this section, when the veteran fails to complete the program as planned.
(a) Consumable supplies. VA will require reimbursement from a veteran for consumable supplies authorized, unless:
(1) The veteran fails to complete the rehabilitation program through no fault of his or her own;
(2) The employment objective of the rehabilitation plan is changed as a result of reevaluation by VA staff;
(3) The total value of the supplies for which repayment is required is less than $100; or
(4) The veteran dies.
(b) Nonconsumable supplies (general). (1) In addition to the exceptions noted in paragraph (c) of this section, VA will not require reimbursement from a veteran for nonconsumable supplies authorized, if:
(i) The veteran and VA change the long-range goal of the rehabilitation plan and those supplies are not required for the veteran’s pursuit of training for the new goal;
(ii) The veteran’s failure to complete the program was not his or her fault;
(iii) The veteran was pursuing the program at a facility which recovers nonconsumable supplies from veterans through contractual arrangements with VA, and the veteran returned to the facility all the nonconsumable supplies furnished at VA expense;
(iv) The veteran reenters the Armed Forces or is in the process of reentering the Armed Forces;
(v) The veteran satisfactorily completed one-half or more of a noncollege degree course (or at least two terms in the case of a college course) for which VA furnished the supplies;
(vi) The veteran certifies that he or she is using in current employment the supplies furnished during training;
(vii) The total value of the supplies for which repayment is required is less than $100;
(viii) The veteran dies;
(ix) The veteran is furnished supplies during a period of employment services but loses the job through no fault of his or her own;
(x) A veteran discontinued from an independent living services program is using supplies and equipment to reduce his or her dependence on others; or
(xi) The veteran is declared rehabilitated.
(2) The amount which a veteran must repay will be the lesser of the current value of the supplies, or the original cost of the supplies. VA will accept supplies in lieu of repayment of the value of the supplies if VA has authorized a change of objective.
(c) Training in the home and self-employment. In addition to the reasons for not requiring repayment or return of nonconsumable supplies listed in paragraph (b) of this section, VA will not require a veteran to pay for or return nonconsumable supplies if: (1) In the case of a veteran training in the home:
(i) VA furnished such supplies to equip his or her home as a place of training; and
(ii) The veteran has completed enough of his or her training program to be considered employable, and has been declared rehabilitated to the point of employability;
(2) A veteran in a self-employment program not in the home is declared rehabilitated; or
(3) The veteran dies and the Executive Director, Veteran Readiness and Employment (VR&E) Service determines that the facts and equities of the family situation warrant waiver of all or a part of the requirements for repayment.
§ 21.224 Prevention of abuse.
Supplies are to be furnished under the most careful checks by the case manager as to what is needed by the veteran to pursue his or her program. Determinations of the supplies needed to enable the veteran to successfully pursue his or her rehabilitation program are made under the provisions of §§ 21.210 through 21.222.
Medical and Related Services
§ 21.240 Medical treatment, care and services.
(a) General. A Chapter 31 participant shall be furnished medical treatment, care and services which VA determines are necessary to develop, carry out and complete the veteran’s rehabilitation plan. The provision of such services is a part of the veteran’s entitlement to benefits and services under Chapter 31, and is limited to the period or periods in which the veteran is a Chapter 31 participant.
(b) Scope of services. The services which may be furnished under Chapter 31 include the treatment, care and services described in part 17 of this title. In addition the following services may be authorized under Chapter 31 even if not included or described in part 17:
(1) Prosthetic appliances, eyeglasses, and other corrective or assistive devices;
(2) Services to a veteran’s family as necessary for the effective rehabilitation of the veteran;
(3) Special services (including services related to blindness and deafness) including:
(i) Language training; speech and voice correction, training in ambulation, and one-hand typewriting;
(ii) Orientation, adjustment, mobility and related services;
(iii) Telecommunications, sensory and other technical aids and devices.
(c) Eligibility. A veteran is eligible for the services described in paragraph (b) of this section during periods in which he or she is considered a Chapter 31 participant. These periods include:
(1) Initial evaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services program;
(5) Employment services; and
(6) Other periods to the extent that services are needed to begin or continue in any of the statutes described in paragraphs (c)(1) through (5) of this section. Such periods include but are not limited to services needed to facilitate reentry into rehabilitation following:
(i) Interruption; or
(ii) Discontinuance because of illness or injury.
See § 17.48(g). Participating in a rehabilitation program under Chapter 31.
§ 21.242 Resources for provision of treatment, care and services.
(a) General. VA medical centers are the primary resources for the provision of medical treatment, care and services for Chapter 31 participants which may be authorized under the provisions of § 21.240. The availability of necessary services in VA facilities shall be ascertained in each case.
(b) Hospital care and medical service. Hospital care and medical services provided under Chapter 31 shall only be furnished in facilities over which VA has direct jurisdiction, except as authorized on a contract or fee basis under the provisions of part 17 of this title.
See § 17.30(l). Hospital care. § 17.30(m) Medical services.
Employment Services
§ 21.250 Overview of employment services.
(a) General. Employment services shall be provided if:
(1) Eligibility for employment services exists;
(2) The employment services which are needed have been identified; and
(3) The services which have been identified are incorporated in the veteran’s IWRP (Individualized Written Rehabilitation Plan) or IEAP (Individualized Employment Assistance Plan).
(b) Definitions. (1) The term program (period) of employment services includes the counseling, medical, social, and other placement and postplacement services provided to a veteran under 38 U.S.C. Chapter 31 to assist the veteran in obtaining or maintaining suitable employment. The term program of employment services is used only if the veteran’s eligibility under Chapter 31 is limited to employment services.
(2) The term job development means a comprehensive professional service to assist the individual veteran to actually obtain a suitable job, and not simply the solicitation of jobs on behalf of the veteran. Continuing and mutually beneficial relationships with employers should be established by VA staff through referral of suitable employees and supportive services (e.g., adjustment counseling and job modification). Job development activities by VA staff are intended to provide disabled workers with a chance for suitable employment with cooperating employers.
(3) The term employable means the veteran is able to secure and maintain employment in the competitive labor market or in a sheltered workshop or other special situation at the minimum wage.
(c) Determining eligibility for, and the extent of, employment services. (1) A veteran’s eligibility for employment services shall be determined under the provisions of § 21.47;
(2) The duration of the period of employment services is determined under provisions of § 21.73;
(3) An IEAP (Individualized Employment Assistance Plan) shall be prepared under provisions of § 21.88;
(4) A veteran shall be placed in and removed from “Employment Assistance Status” under provisions of § 21.194.
§ 21.252 Job development and placement services.
(a) General. Job development and placement services may include:
(1) Direct placement assistance by VA;
(2) Utilization of the job development and placement services of:
(i) DVOP (Disabled Veterans Outreach Program) specialists;
(ii) Programs authorized under the Rehabilitation Act of 1973, as amended;
(iii) The State Employment Services and the Veterans’ Employment and Training Service of the United States Department of Labor;
(iv) The Office of Personnel Management; and
(v) The services of any other public, or nonprofit organization having placement services available; and
(vi) Any for-profit agency in a case in which it has been determined that comparable services are not available through public and nonprofit agencies and comparable services cannot be provided cost-effectively by the public and nonprofit agencies listed in this paragraph.
(b) Promotion of employment and training opportunities. As funding permits, VA employees engaged in the administration of Chapter 31 will promote the establishment of employment, training, and related opportunities to accomplish the purposes described in § 21.1.
(c) Advocacy responsibility. VA shall take reasonable steps to ensure that a veteran being provided employment services receives the benefit of any applicable provision of law or regulation providing for special consideration or emphasis or preference of the veteran in employment or training, especially programs and activities identified in the preceding paragraphs of this section.
(d) Interagency coordination. VA employees providing assistance to Chapter 31 participants shall coordinate their job development, placement, promotional, and advocacy activities with similar or related activities of:
(1) The Department of Labor and State employment security agencies as provided by written agreement or other arrangement;
(2) The State approving agencies:
(3) Other public, for-profit and nonprofit agencies providing employment and related services.
§ 21.254 Supportive services.
(a) General. Supportive services which may be provided during a period or program of employment services include a broad range of medical treatment, care and services, supplies, license and other fees, special services, including services to the blind and deaf, transportation assistance, services to the veteran’s family, and other appropriate services, subject to the limitations provided in VA regulations governing the provisions of these services under Chapter 31.
(b) Exclusions. The following benefits may not be provided to the veteran by VA during a period or program of employment services:
(1) Subsistence allowance, or payment of an allowance at the educational assistance rate paid under Chapter 30 for similar training;
(2) Education and training services, other than brief courses, such as review courses necessary for licensure;
(3) Revolving Fund Loan; and
(4) Work-study allowance.
(c) Individuals with service-connected disability(ies) trained for self-employment under a State rehabilitation agency. An individual with service-connected disability(ies) who has trained for self-employment under a State rehabilitation agency may be provided supplemental equipment and initial stocks and supplies similar to the materials supplied under 38 U.S.C. chapter 31 to individuals with the most severe service-connected disability(ies) who require self-employment as defined in § 21.257(b) if VA determines that the following conditions are met:
(1) The individual is eligible for employment assistance under the provisions of § 21.47;
(2) Evidence of record indicates that the individual has successfully completed training for a self-employment program under a State rehabilitation agency;
(3) No other non-VA sources of assistance are known to be available for the individual to complete his or her self-employment program; and
(4) The individual meets the requirements of the definition in § 21.257(b).
§ 21.256 Incentives for employers.
(a) General. VA may make payments to employers to enable a veteran who has been rehabilitated to employability to begin and maintain employment or to provide on-job training. The purpose of such payment is to facilitate the placement of veterans who are generally qualified for employment but may lack some specific training or work experience which the employer requires or who are difficult to place due to their disability. The specific conditions which must be met before this option may be considered are contained in paragraphs (b) through (d) of this section.
(b) Requirements for payments to employers. Payments may be made to employers to provide on-job training or to begin and maintain employment if all of the following conditions are met:
(1) The veteran is in need of an on-job training situation or is generally qualified for employment but such on-job situation or employment opportunity is not otherwise available despite repeated and intensive efforts on the part of VA and the veteran to secure such opportunities. These conditions are also considered to be met when:
(i) There are few employers within commuting distance of the veteran’s home who can provide a training or employment opportunity consistent with the veteran’s plan; and
(ii) The veteran reasonably could not be required to seek on-job or employment opportunities in other areas due to the effects of his or her disability, family situation, or other pertinent factors; and
(iii) The available local employers will only provide a training or employment opportunity if VA agrees to reimburse for direct expenses to the degree permitted under this section.
(2) The training establishment or employer is in compliance with provisions of § 21.292 (a) and (b), pertaining to the approval of courses and facilities.
(3) VA entered into an agreement with the employer in writing prior to the beginning of the period of on-job training or employment, whereby the employer will be reimbursed for direct expenses approved under provisions of paragraph (c) of this section.
(4) The on-job training program or employment of the veteran does not displace a current employee or prevent the recall of a laid-off employee.
(c) Limitation on payment. Payments to the employer may be made only for the employer’s direct expenses as a result of hiring the veteran and generally may not exceed one-half of the wage paid to other employees in the same or similar job. Direct expenses include:
(1) Instruction;
(2) Instructional aids;
(3) Training materials and supplies provided to the veteran;
(4) Minor modification of equipment to the special limitations of the veteran;
(5) Significant loss of productivity of the employer caused by using the veteran as opposed to a nondisabled employee.
(d) Duration. The period for which the employer is paid may not exceed the period necessary to accomplish on-job training or to begin and maintain employment at the journeyman level for at least 2 months. The period for which payment may be authorized may not exceed 9 months, unless the Veteran Readiness and Employment (VR&E) Officer, approves a longer period.
(e) Benefits and services. (1) An eligible veteran on whose behalf payments are made to the employer shall be provided all other Chapter 31 benefits and services furnished to other veterans receiving employment services. A veteran may not be paid a subsistence allowance during the period in which job training or work experience is furnished under this section.
(2) Notwithstanding any other provisions of these regulations, if the program in which the veteran is participating meets the criteria for approval of on-job training under chapter 30, the veteran may be paid at educational assistance rates provided for this type of training under chapter 30 to the extent that he or she has remaining eligibility and entitlement under chapter 30 and has elected to receive a subsistence allowance in accordance with § 21.7136.
(f) Non-duplication. VA will not make payments under the provisions of this section to an employer receiving payments from any other program for the same training or employment expenses.
§ 21.257 Self-employment.
(a) Approval of self-employment as a vocational goal. A program of vocational rehabilitation benefits and services may include self-employment for an individual if VA determines that such an objective is a suitable vocational goal. VA will make this determination based on –
(1) The results of the individual’s initial evaluation conducted in accordance with the provisions of § 21.50; and
(2) The provisions of this section.
(b) Definition. For purposes of this subpart, individuals with the most severe service-connected disability(ies) who require self-employment means individuals who have been determined by VA to have limitations affecting employability arising from the effects of each individual’s service-connected disability(ies), which are so severe as to necessitate selection of self-employment as the only reasonably feasible vocational goal for the individuals.
(c) Scope of self-employment benefits and services. (1) VA may provide the self-employment services listed in paragraph (d) of this section to program participants who are pursuing the vocational goal of self-employment.
(2) VA may provide the more extensive services listed in paragraph (e) of this section to individuals with the most severe service-connected disability(ies) who require self-employment.
(d) Assistance for other individuals in self-employment. Subject to the provisions of § 21.258, VA may provide the following assistance to any individual for whom self-employment is determined to be a suitable vocational goal –
(1) Vocational training;
(2) Incidental training in the management of a business;
(3) License or other fees required for self-employment;
(4) Necessary tools and supplies for the occupation; and
(5) Services described in § 21.252.
(e) Special self-employment services for individuals with the most severe service-connected disability(ies) who require self-employment. Individuals described in paragraph (b) of this section who are in a self-employment program may receive –
(1) The services described in paragraph (d) of this section; and
(2) The assistance described in § 21.214.
(f) Feasibility analysis of a proposed self-employment business plan. VA will conduct a comprehensive review and analysis of the feasibility of a proposed business plan, as submitted by the individual or developed with VA’s assistance, prior to authorizing a rehabilitation plan leading to self-employment (a “self-employment plan”). The feasibility analysis must include –
(1) An analysis of the economic viability of the proposed business;
(2) A cost analysis specifying the amount and types of assistance that VA will provide;
(3) A market analysis for the individual’s proposed services or products;
(4) Availability of financing from non-VA sources, including the individual’s personal resources, local banks, and other sources;
(5) Evidence of coordination with the Small Business Administration to secure special consideration under section 8 of the Small Business Act, as amended;
(6) The location of the site for the proposed business and the cost of the site, if any; and
(7) A training plan to operate a successful business.
§ 21.258 Cost limitations on approval of self-employment plans.
A self-employment plan with an estimated or actual cost of less than $25,000 may be approved by the Veteran Readiness and Employment (VR&E) Officer with jurisdiction. Any self-employment plan with an estimated or actual cost of $25,000 or more must be approved by the Executive Director, VR&E Service.
Monetary Assistance Services
§ 21.260 Subsistence allowance.
(a) General. A veteran participating in a rehabilitation program under 38 U.S.C. chapter 31 will receive a monthly subsistence allowance at the rates in paragraph (b) of this section, unless the veteran elects to receive an alternate payment (for the purposes of part 21, subpart A, referred to as the Post-9/11 subsistence allowance) as specified in paragraph (c) of this section, or payment at the rate of monthly educational assistance allowance payable under 38 U.S.C. chapter 30 for the veteran’s type of training. See § 21.264(a) for election of payment at the chapter 30 rate and § 21.264(b) for election of the Post-9/11 subsistence allowance. See §§ 21.7136, 21.7137, and 21.7138 to determine the applicable chapter 30 rate.
(b) Rate of payment. VA pays subsistence allowance at the rates stated in the following tables:
(1) Subsistence allowance is paid at the following rates effective October 1, 1994, and before November 2, 1994:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $374.93 | $465.08 | $548.05 | $39.95 |
| 281.71 | 349.32 | 409.76 | 30.73 | |
| 188.49 | 233.56 | 274.54 | 20.49 | |
| Nonpay or nominal pay on-job training in a Federal, State, or local agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: | ||||
| Full-time only | 374.93 | 465.08 | 548.05 | 39.95 |
| Nonpay or nominal pay work experience in a Federal, State, or local agency: | ||||
| Full-time | 374.93 | 465.08 | 548.05 | 39.95 |
| 281.71 | 349.32 | 409.76 | 30.73 | |
| 188.49 | 233.56 | 274.54 | 20.49 | |
| Farm cooperative, apprenticeship, or other on-job training: 2 | ||||
| Full-time only | 327.81 | 396.44 | 456.88 | 29.71 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 374.93 | 465.08 | 548.05 | 39.45 |
| OJT greater than | 327.81 | 396.44 | 456.88 | 29.71 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 374.93 | 465.08 | 548.05 | 39.95 |
| On-job | 327.81 | 396.44 | 456.88 | 29.71 |
| Improvement of rehabilitation potential: | ||||
| Full-time only | 374.93 | 465.08 | 548.05 | 39.95 |
| 281.71 | 349.32 | 409.76 | 30.73 | |
| 188.49 | 233.56 | 274.54 | 20.49 | |
3 | 94.24 | 116.78 | 137.27 | 10.24 |
1 For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(2) Subsistence allowance is paid at the following rates effective November 2, 1994, and before October 1, 1995:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $374.93 | $465.08 | $548.05 | $39.95 |
| 281.71 | 349.32 | 409.76 | 30.73 | |
| 188.49 | 233.56 | 274.54 | 20.49 | |
| Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: | ||||
| Full-time only | 374.93 | 465.08 | 548.05 | 39.95 |
| Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: | ||||
| Full-time | 374.93 | 465.08 | 548.05 | 39.95 |
| 281.71 | 349.32 | 409.76 | 30.73 | |
| 188.49 | 233.56 | 274.54 | 20.49 | |
| Farm cooperative, apprenticeship, or other on-job training: 2 | ||||
| Full-time only | 327.81 | 396.44 | 456.88 | 29.71 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 374.93 | 465.08 | 548.05 | 39.45 |
| OJT greater than | 327.81 | 396.44 | 456.88 | 29.71 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 374.93 | 465.08 | 548.05 | 39.95 |
| On-job | 327.81 | 396.44 | 456.88 | 29.71 |
| Improvement of rehabilitation potential: | ||||
| Full-time only | 374.93 | 465.08 | 548.05 | 39.95 |
| 281.71 | 349.32 | 409.76 | 30.73 | |
| 188.49 | 233.56 | 274.54 | 20.49 | |
3 | 94.24 | 116.78 | 137.27 | 10.24 |
1 For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(3) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1995, and before October 1, 1996:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $385.80 | $478.57 | $563.94 | $41.11 |
| 289.88 | 359.45 | 421.64 | 31.62 | |
| 193.96 | 240.33 | 282.50 | 21.08 | |
| Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: | ||||
| Full-time only | 385.80 | 478.57 | 563.94 | 41.11 |
| Nonpay or nominal pay work experience in a facility of a Federal, State, local, or Indian tribe agency: | ||||
| Full-time | 385.80 | 478.57 | 563.94 | 41.11 |
| 289.88 | 359.45 | 421.64 | 31.62 | |
| 193.96 | 240.33 | 282.50 | 21.08 | |
| Farm cooperative, apprenticeship, or other on-job training (OJT): 2 | ||||
| Full-time only | 337.32 | 407.94 | 470.13 | 30.57 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 385.80 | 478.57 | 563.94 | 41.11 |
| OJT greater than 2 | 337.32 | 407.94 | 470.13 | 30.57 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 385.80 | 478.57 | 563.94 | 41.11 |
| On-job 2 | 337.32 | 407.94 | 470.13 | 30.57 |
| Improvement of rehabilitation potential: | ||||
| Full-time only | 385.80 | 478.57 | 563.94 | 41.11 |
| 289.88 | 359.45 | 421.64 | 31.62 | |
| 193.96 | 240.33 | 282.50 | 21.08 | |
3 | 96.97 | 120.17 | 141.25 | 10.54 |
1 For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(4) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1996, and before October 1, 1997:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $396.22 | $491.49 | $579.17 | $42.22 |
| 297.71 | 369.16 | 433.02 | 32.47 | |
| 199.20 | 246.82 | 290.13 | 21.65 | |
| Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: | ||||
| Full-time only | 396.22 | 491.49 | 579.17 | 42.22 |
| Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: | ||||
| Full-time | 396.22 | 491.49 | 579.17 | 42.22 |
| 297.71 | 369.16 | 433.02 | 32.47 | |
| 199.20 | 246.82 | 290.13 | 21.65 | |
| Farm cooperative, apprenticeship, or other on-job training (OJT) 2 | ||||
| Full-time only | 346.43 | 418.95 | 482.82 | 31.40 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 396.22 | 491.49 | 579.17 | 42.22 |
| OJT greater than 2 | 346.43 | 418.95 | 482.82 | 31.40 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 396.22 | 491.49 | 579.17 | 42.22 |
| On-job 2 | 346.43 | 418.95 | 482.82 | 31.40 |
| Improvement of rehabilitation potential: | ||||
| Full-time only | 396.22 | 491.49 | 579.17 | 42.22 |
| 297.71 | 369.16 | 433.02 | 32.47 | |
| 199.20 | 246.82 | 290.13 | 21.65 | |
3 | 99.59 | 123.41 | 145.06 | 10.82 |
1 For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(5) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1997, and before November 1, 1998:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $407.31 | $505.25 | $595.39 | $43.40 |
| 306.05 | 379.50 | 445.14 | 33.38 | |
| 204.78 | 253.73 | 298.25 | 22.26 | |
| Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: | ||||
| Full-time only | 407.31 | 505.25 | 595.39 | 43.40 |
| Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: | ||||
| Full-time | 407.31 | 505.25 | 595.39 | 43.40 |
| 306.05 | 379.50 | 445.14 | 33.38 | |
| 204.78 | 253.73 | 298.25 | 22.26 | |
| Farm cooperative, apprenticeship, or other on-job training (OJT): 2 | ||||
| Full-time only | 356.13 | 430.68 | 496.34 | 32.28 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 407.31 | 505.25 | 595.39 | 43.40 |
| OJT greater than 2 | 356.13 | 430.68 | 496.34 | 32.28 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 407.31 | 505.25 | 595.39 | 43.40 |
| On-job 2 | 356.13 | 430.68 | 496.34 | 32.28 |
| Improvement of rehabilitation potential: | ||||
| Full-time only | 407.31 | 505.25 | 595.39 | 43.40 |
| 306.05 | 379.50 | 445.14 | 33.38 | |
| 204.78 | 253.73 | 298.25 | 22.26 | |
3 | 102.38 | 126.87 | 148.09 | 11.12 |
1For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(6) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1998, and before October 1, 1999:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $413.83 | $513.33 | $604.92 | $44.09 |
| 310.95 | 385.57 | 452.26 | 33.91 | |
| 208.06 | 257.79 | 303.02 | 22.62 | |
| Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: | ||||
| Full-time only | 413.83 | 513.33 | 604.92 | 44.09 |
| Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: | ||||
| Full-time | 413.83 | 513.33 | 604.92 | 44.09 |
| 310.95 | 385.57 | 452.26 | 33.91 | |
| 208.06 | 257.79 | 303.02 | 22.62 | |
| Farm cooperative, apprenticeship, or other on-job training (OJT): 2 | ||||
| Full-time only | 361.83 | 437.57 | 504.28 | 32.80 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 413.83 | 513.33 | 604.92 | 44.09 |
| OJT greater than 2 | 361.83 | 437.57 | 504.28 | 32.80 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 413.83 | 513.33 | 604.92 | 44.09 |
| On-job 2 | 361.83 | 437.57 | 504.28 | 32.80 |
| Improvement of rehabilitation potential: | ||||
| Full-time only | 413.83 | 513.33 | 604.92 | 44.09 |
| 310.95 | 385.57 | 452.26 | 33.91 | |
| 208.06 | 257.79 | 303.02 | 22.62 | |
3 | 104.02 | 128.90 | 151.51 | 11.30 |
1 For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(7) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1999, and before October 1, 2000:
| Type of program | No dependents | One dependent | Two dependents | Additional amount for each dependent over two |
|---|---|---|---|---|
| Institutional: 1 | ||||
| Full-time | $420.45 | $521.54 | $614.60 | $44.80 |
| 315.93 | 391.74 | 459.50 | 34.45 | |
| 211.39 | 261.91 | 307.87 | 22.98 | |
| Nonpay or nominal pay on-job training in a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor; institutional non-farm cooperative: | ||||
| Full-time only | 420.45 | 521.54 | 614.60 | 44.80 |
| Nonpay or nominal pay work experience in a Federal, State, local, or federally recognized Indian tribe agency: | ||||
| Full-time | 420.45 | 521.54 | 614.60 | 44.80 |
| 315.93 | 391.74 | 459.50 | 34.45 | |
| 211.39 | 261.91 | 307.87 | 22.98 | |
| Farm cooperative, apprenticeship, or other on-job training (OJT): 2 | ||||
| Full-time only | 367.62 | 444.57 | 512.35 | 33.32 |
| Combination of institutional and OJT (Full-time only): | ||||
| Institutional greater than | 420.45 | 521.54 | 614.60 | 44.80 |
| OJT greater than 2 | 367.62 | 444.57 | 512.35 | 33.32 |
| Non-farm cooperative (Full-time only): | ||||
| Institutional | 420.45 | 521.54 | 614.60 | 44.80 |
| On-job 2 | 367.62 | 444.57 | 512.35 | 33.32 |
| Improvement of rehabilitation potential: | ||||
| Full-time | 420.45 | 521.54 | $614.60 | $44.80 |
| 315.93 | 391.74 | 459.50 | 34.45 | |
| 211.39 | 261.91 | 307.87 | 22.98 | |
3 | 105.98 | 130.96 | 153.93 | 11.48 |
1 For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.
2 For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran’s objective.
3 The quarter-time rate may be paid only during extended evaluation.
(c) Rate of payment of Post-9/11 subsistence allowance. In lieu of the subsistence allowance payable under paragraph (b) of this section, VA pays the Post-9/11 subsistence allowance at the rates in the table at the end of this paragraph, effective August 1, 2011, based on the basic allowance for housing payable under 37 U.S.C. 403. For purposes of the following table:
(1) BAH means “the applicable amount of basic allowance for housing payable under 37 U.S.C. 403 for a member of the military with dependents in pay grade E-5 residing in the military housing area that encompasses all or the majority portion of the ZIP code area in which is located the institution, agency, or employer providing the rehabilitation program concerned”.
(2) BAH National Average means “the average (i.e., unweighted arithmetic mean) monthly amount of the basic allowance for housing payable under 37 U.S.C. 403 for a member of the military with dependents in pay grade E-5 residing in the United States”.
Payment of Post-9/11 Subsistence Allowance in Accordance With Public Law 111-377
[Effective August 1, 2011]
1
| Type of program | Payment |
|---|---|
| Institutional: 2 | |
| Full-time | Entire |
| Nonpay or nominal pay on-job training in a Federal, State, local, or federally recognized Indian tribe agency; vocational course in a rehabilitation facility or sheltered workshop; institutional non-farm cooperative: | |
| Full-time only | Entire |
| Nonpay or nominal pay work experience in a Federal, State, local, or federally recognized Indian tribe agency: | |
| Full-time | Entire |
| Farm cooperative, apprenticeship, or other on-job training (OJT): 3 | |
| Full-time only | Entire |
| Combination of institutional and OJT (Full-time only): | |
| Institutional greater than | Entire |
| OJT greater than 3 | Entire |
| Non-farm cooperative (Full-time only): | |
| Institutional | Entire |
| On-job 3 | Entire |
| Improvement of rehabilitation potential: | |
| Full-time | Entire |
4 | |
| Training consisting of solely distance learning: 5 | |
| Full-time | |
| Training in the home, including independent instructor: | |
| Full-time only | |
| Training in an institution not assigned a ZIP code, including foreign institutions: | |
| Full-time | Entire |
1 Effective August 1, 2011, the
2 For measurement of rate of pursuit, see §§ 21.4270 and 21.4272 through 21.4275. Payments for courses being taken simultaneously at more than one institution are based on the
3 For on-job training, payment of the
4 The quarter-time rate may be paid only during extended evaluation.
5 Payment for training consisting of both distance learning and courses taken at a local institution is based on the
(d) Subsistence allowance precluded. A veteran may not receive a subsistence allowance when VA is providing the veteran only the following services:
(1) Initial evaluation;
(2) Placement and post-placement services under 38 U.S.C. 3105(b); or
(3) Counseling.
(e) Dependents. The term dependent means a spouse, child or dependent parent who meets the definition of relationship specified in § 3.50, § 3.57 or § 3.59 of this chapter.
§ 21.262 Procurement and reimbursement of cost for training and rehabilitation services, supplies, or facilities.
(a) General. Whenever services, supplies and facilities from source outside VA are required by any of these regulations, they shall be provided through contract, agreement of other cooperative arrangement between VA and the vendor.
(b) VA Acquisition Regulations. Payments of charges for training and rehabilitation services, supplies, or facilities, authorized under Chapter 31 are subject to the provisions of applicable VA Acquisition Regulations especially 48 CFR part 831 and subpart 871.2.
§ 21.264 Election of payment at the 38 U.S.C. chapter 30 educational assistance rate or election of payment of Post-9/11 subsistence allowance.
(a) Election of chapter 30 educational assistance rate. (1) Eligibility. A veteran who applies for, and is found entitled to training or education under Chapter 31, may elect to receive payment at the educational allowance rate and other assistance furnished under Chapter 30, for similar training in lieu of a subsistence allowance, provided the following criteria are met:
(i) The veteran has remaining eligibility for, and entitlement to educational assistance under Chapter 30;
(ii) The veteran enrolls in a program of education or training approved for benefits under Chapter 30;
(iii) The program of education is part of an IWRP (Individualized Written Rehabilitation Plan) approved by VA.
(2) Reelection of subsistence allowance. Reelection of payment of benefits at the Chapter 31 subsistence allowance rate may be made only after completion of a term, quarter, semester, or other period of instruction unless:
(i) Chapter 30 eligibility or entitlement ends earlier;
(ii) Failure to approve immediate reelection would prevent the veteran from continuing in the rehabilitation program.
(3) Services precluded. A veteran entitled to vocational rehabilitation training or education who elects payment at the educational assistance rate payable under Chapter 30 shall be provided the same training and rehabilitation services as other veterans under Chapter 31, but may not be provided:
(i) Subsistence allowances;
(ii) Loans from the revolving fund loan;
(iii) Payment of costs for:
(A) Vocational and other training services;
(B) Supplies; or
(C) Individualized tutorial assistance.
(4) Chapter 30 provisions applicable. A veteran who has elected payment at the Chapter 30 educational assistance rate must meet the same terms and conditions as other veterans pursuing similar training under these programs.
(b) Election of payment of Post-9/11 subsistence allowance – (1) Eligibility. Effective August 1, 2011, a veteran who applies and is eligible for training or education under chapter 31 may elect to receive payment of the Post-9/11 subsistence allowance under § 21.260(c) in lieu of a subsistence allowance under § 21.260(b), provided the veteran has remaining eligibility for, and entitlement to, educational assistance under chapter 33, Post-9/11 GI Bill.
(2) Reelection of subsistence allowance under § 21.260(b). Reelection of payment of benefits at the chapter 31 subsistence allowance rate under § 21.260(b) may be made only after completion of a term, quarter, semester, or other period of instruction unless:
(i) Chapter 33 eligibility or entitlement ends earlier; or
(ii) Failure to approve immediate reelection would prevent the veteran from continuing in the rehabilitation program.
(3) Services under chapter 31. A veteran who elects payment of the Post-9/11 subsistence allowance remains entitled to all other services and assistance under chapter 31.
§ 21.266 Payment of subsistence allowance under special conditions.
(a) Hospitalized veteran or serviceperson. A veteran pursuing a VA rehabilitation program under Chapter 31 while hospitalized in a VA medical center or in any other hospital at VA expense may receive the subsistence allowance otherwise payable. The subsistence allowance will be paid at the rates specified in § 21.260, except:
(1) The amount of subsistence allowance or the allowance provided under § 21.264 that may be paid to a veteran pursuing a rehabilitation program for any month for which the veteran receives compensation at the rate prescribed in § 3.401(h) of this title, as the result of hospital treatment (not including post-hospital convalescence) or observation at the expense of VA may not exceed, when added to any compensation to which such veteran is entitled for the month, an amount equal to the greater of:
(i) The sum of: (A) the amount of monthly subsistence of the allowance payable under § 21.264, and (B) the amount of monthly disability compensation that would be paid to the veteran if he or she was not receiving compensation at the temporary 100 percent rate as the result of such hospital treatment or observation, or
(ii) The amount of monthly disability compensation payable under § 3.401(h) of this title.
(2) A veteran pursuing a rehabilitation program while in post hospital convalescence (§ 3.401(h)) will be paid the regular rate of subsistence allowance.
(3) A serviceperson pursuing a rehabilitation program under Chapter 31 will not receive a subsistence allowance if he or she is hospitalized in a medical facility under the jurisdiction of the Secretary pending final discharge from the armed forces.
(b) Specialized rehabilitation facility – (1) A veteran in a specialized rehabilitation facility will be paid the regular rate of subsistence allowance at the institutional rate. VA may pay the cost of room and board in lieu of subsistence allowance when:
(i) The specialized rehabilitation facility requires that similarly circumstanced persons pay the same charges for room and board, and
(ii) The case manager finds and the veteran agrees that it is to the veteran’s advantage for VA to pay the cost of room and board.
(2) Even though VA pays the cost of room and board, the veteran will be paid that portion of subsistence allowance otherwise payable for dependents.
(c) Non-pay work experience or training in a Federal agency. A veteran in an on-job program or being provided work experience in a Federal agency at no or nominal pay shall receive subsistence allowance at the institutional rate.
(d) Extended evaluation and independent living program. A veteran in a program of extended evaluation or independent living service program shall be paid subsistence allowance for full or part-time participation at the rate specified for institutional training in § 21.260. If an extended evaluation or independent living program is pursued on a less than a quarter-time basis, as measured under § 21.310(d), VA will only pay established charges for services furnished.
(e) On-job training. A veteran in an on-job training program will be paid subsistence allowance at the rate provided under § 21.260(b), except that subsistence allowance may not exceed the difference between the monthly training wage, exclusive of overtime, and the entrance journeyman wage for the veteran’s objective.
§ 21.268 Employment adjustment allowance.
(a) General. A veteran who completes a period of rehabilitation and reaches the point of employability will be paid an employment adjustment allowance for a period of two months at the full-time subsistence allowance rate for the type of program the veteran was last pursuing. (See § 21.190(d))
(b) Reelection of subsistence allowance. A veteran who has elected payment at the Chapter 30 educational assistance allowance rate may be paid an employment adjustment allowance only if he or she reelects subsistence allowance to become effective no later than the day following completion of the period of rehabilitation to the point of employability.
(c) Special programs. An employment adjustment allowance will be paid at the institutional rate of subsistence allowance for veterans in any of the following programs:
(1) On-job training at no or nominal pay in a Federal agency;
(2) Training in the home program;
(3) Independent instructor program;
(4) Cooperative program; or
(5) Self-employment program.
(d) Combination program. A veteran who has pursued a combination program will be paid an employment adjustment allowance at the full-time rate for the type of training the veteran was actually pursuing at the completion of the period of rehabilitation to the point of employability.
(e) Subsequent payments of employment adjustment allowance. If a veteran has ever received an employment adjustment allowance following rehabilitation to the point of employability, he or she may, nevertheless, receive it again when completing an additional rehabilitation program to the point of employability if:
(1) The prior determination of rehabilitation to the point of employability is set aside; and
(2) The veteran is reinducted into a new vocational rehabilitation program as provided in § 21.282.
(f) Special situations. Effective August 6, 2013, a veteran who has been displaced as the result of a natural or other disaster while being paid an employment adjustment allowance may receive up to an additional two months of employment adjustment allowance, if satisfactorily following a program of employment services.
(g) Employment adjustment allowance not charged against entitlement. An employment adjustment allowance will not be charged against the veteran’s basic entitlement.
§ 21.270 Payment of subsistence allowance during leave and other periods.
(a) Payment during leave. VA will pay an eligible veteran a subsistence allowance during any period of approved leave including a veteran:
(1) Receiving medical or rehabilitation services on an outpatient basis at a VA medical center, and who provides his or her own room and board;
(2) Receiving service department retirement or retained pay while not on active duty;
(3) Hospitalized at a VA medical center while on approved leave. If the veteran becomes eligible for payment of disability compensation at the temporary 100 percent rate, under § 3.401(h) of this title due to hospitalization, payment will be made under provisions of § 21.266(a).
(b) Payment for other periods. Subsistence allowance will be paid for:
(1) Weekend and legal holidays, or customary vacation periods associated with them;
(2) Periods in which the school is closed temporarily under emergency conditions described in § 21.4138(f).
§ 21.272 Veteran-student services.
(a) Eligibility. Veterans who are pursuing a rehabilitation program under chapter 31 on a three-quarter or full-time basis are eligible to receive a work-study allowance.
(b) Selection criteria. Whenever feasible, VA will give priority to veterans with service-connected disabilities rated at 30 percent or more disabling in selection of recipients of this allowance. VA shall consider the following additional selection criteria:
(1) Need of the veteran to augment the subsistence allowance or payment made by the Chapter 30 rate;
(2) Motivation of the veteran; and
(3) Compatibility of the work assignment with the veteran’s physical condition.
(c) Utilization. Veteran-student services may be utilized in connection with:
(1) VA outreach service program as carried out under the supervision of a VA employee;
(2) Preparation and processing of necessary VA papers and other documents at educational institutions, regional offices or other VA facilities;
(3) Hospital and domiciliary care and medical treatment at VA facilities; and
(4) Any other appropriate activity of VA.
(d) Rate of payment. (1) In return for the veterans’ agreement to perform services for VA totaling 25 times the number of weeks contained in an enrollment period, VA will pay an allowance equal to the higher of:
(i) The hourly minimum wage in effect under section 6(a) of the Fair Labor Standards Act of 1938 times the number of hours the veteran has agreed to work; or
(ii) The hourly minimum wage under comparable law of the State in which the services are to be performed times the number of hours the veteran has agreed to work.
(2) VA will pay proportionately less to a veteran who agrees to perform a lesser number of hours of services.
(e) Payment in advance. VA will pay in advance an amount equal to 40 percent of the total amount payable under the contract (but not more than an amount equal to 50 times the applicable hourly minimum wage).
(f) Veteran reduces rate of training. In the event the veteran reduces his or her training to less than three-quarter time before completing an agreement, the veteran, with the approval of the Director of the VA field station, or designee, may be permitted to complete the portions of an agreement in the same or immediately following term, quarter or semester in which the veteran ceases to be at least a three-quarter time student.
(g) Veteran terminates training. If the veteran terminates all training before completing an agreement, VA:
(1) Will permit him or her to complete the portion of the agreement represented by the sum of money VA has advanced to the veteran for which he or she has not performed any services; but
(2) Will not permit him or her to complete that portion of an agreement for which no advance has been made.
(h) Indebtedness for unperformed service. (1) If the veteran has received an advance for hours of unperformed service that remain after application of paragraphs (f) and (g) of this section, that advance:
(i) Will be a debt due the United States; and
(ii) Will be subject to recovery in the same manner as any other debt due the United States;
(2) For each hour of unperformed service, the amount of indebtedness shall equal the hourly wage upon which the contract was made.
(i) Survey. VA will conduct an annual survey of its regional offices to determine the number of veterans whose services can be utilized effectively.
§ 21.274 Revolving fund loan.
(a) Establishment of revolving fund loan. A revolving fund is established to provide advances to veterans who would otherwise be unable to begin or continue in a rehabilitation program without such assistance.
(b) Definition. The term advance means a non-interest loan from the revolving fund.
(c) Eligibility. A veteran is eligible for an advance if the following conditions are present:
(1) An Individualized Written Rehabilitation Plan, Individualized Extended Evaluation Plan, or Individualized Independent Living Plan has been prepared; and
(2) The veteran and VA staff agree on the terms and conditions of the plan.
(d) Advance conditions. (1) An advance may be approved when the following conditions are met:
(i) The purpose of the advance is clearly and directly related to beginning, continuing, or reentering a rehabilitation program;
(ii) The veteran would otherwise be unable to begin, continue or reenter his or her rehabilitation program;
(iii) The advance does not exceed either the amount needed, or twice the monthly subsistence allowance for a veteran without dependents in full-time institutional training specified in § 21.260(b); and
(iv) The veteran has elected, or is in receipt of, subsistence allowance.
(2) An advance may not be made to a veteran who meets conditions described in paragraph (d)(1) of this section if the veteran:
(i) Has not fully repaid an advance;
(ii) Does not agree to the terms and conditions for repayment; or
(iii) Will not be eligible in the future for payments of pension, compensation, subsistence allowance, educational assistance, or retired pay.
(e) Determination of the amount of the advance. (1) If the conditions described in paragraphs (c) and (d)(2) of this section are met, a Counseling Psychologist (CP), Vocational Rehabilitation Counselor (VRC), or vocational rehabilitation specialist in the Veteran Readiness and Employment (VR&E) Division will:
(i) Document the findings; and
(ii) Determine the amount of the advance.
(2) Loans will be made in multiples of $10.
(f) Repayment – (1) Offset possible. The amount advanced will be repaid in monthly installments from future VA payments for compensation, pension, subsistence allowance, educational assistance allowance or retired pay.
(i) Repayment will begin on the earlier of the following dates:
(A) The first day of the month following the month in which the advance is granted; or
(B) The first day of the month after receipt of the advance in which the veteran receives a subsistence allowance
(ii) The VR&E staff person who approves the advance will determine the rate of repayment.
(iii) The monthly rate of repayment may not be less than 10 percent of the amount advanced unless the monthly benefit against which the advance is being offset is less than that amount.
(2) Offset not possible. If the amount advanced cannot be repaid from the benefits cited in paragraph (f)(1) of this section because the veteran is not in receipt of any of these benefits, collection of the amount due will be made in the same manner as any other debt payable to VA.
§ 21.276 Incarcerated veterans.
(a) General. The provisions contained in this section describe the limitations on payment of subsistence allowance and charges for tuition and fees for:
(1) Incarcerated veterans;
(2) Formerly incarcerated veterans in halfway houses; and
(3) Incarcerated and formerly incarcerated veterans in work release programs.
(b) Definition. The term incarcerated veteran means any veteran incarcerated in a Federal, State, or local prison, jail, or other penal institution for a felony. It does not include any veteran who is pursuing a rehabilitation program under Chapter 31 while residing in a halfway house or participating in a work-release program in connection with such veteran’s conviction of a felony.
(c) Subsistence allowance not paid to an incarcerated veteran. A subsistence allowance may not be paid to an incarcerated veteran convicted of a felony, but VA may pay all or part of the veteran’s tuition and fees.
(d) Halfway house. A subsistence allowance may be paid to a veteran pursuing a rehabilitation program while residing in a halfway house as a result of a felony conviction even though all of the veteran’s living expenses are paid by a non-VA Federal, State, or local government program.
(e) Work-release program. A subsistence allowance may be paid to a veteran in a work-release program as a result of a felony conviction.
(f) Services. VA may provide other appropriate services, including but not limited to medical, reader service, and tutorial assistance necessary for the veteran to pursue his or her rehabilitation program.
(g) Payment of allowance at the rates paid under Chapter 30. A veteran incarcerated for a felony conviction or a veteran in a halfway house or work-release program who elects payment at the educational assistance rate paid under Chapter 30 shall be paid in accordance with the provisions of law applicable to other incarcerated veterans training under Chapter 30.
(h) Apportionment. Apportionment of subsistence allowance which began before October 17, 1980 made to dependents of an incarcerated veteran convicted of a felony may be continued.
Induction into a Rehabilitation Program
§ 21.282 Effective date of induction into a rehabilitation program; retroactive induction.
(a) Entering a rehabilitation program. The effective date of induction into a rehabilitation program is governed by the provisions of §§ 21.320 through 21.334, except as provided in this section.
(b) Retroactive induction. Subject to paragraphs (c) and (d) of this section, an individual may be inducted into a rehabilitation program on a retroactive basis. If the individual is retroactively inducted, VA may authorize payment pursuant to § 21.262 or § 21.264 for tuition, fees, and other verifiable expenses that an individual paid or incurred consistent with the approved rehabilitation program. In addition, VA may authorize payment of subsistence allowance pursuant to §§ 21.260, 21.266, and 21.270 for the period of retroactive induction, except for any period during which the individual was on active duty.
(c) Conditions for retroactive induction. Retroactive induction into a rehabilitation program may be authorized for a past period under a claim for vocational rehabilitation benefits when all of the following conditions are met:
(1) The past period is within –
(i) A period under § 21.40(c) during which a servicemember was awaiting discharge for disability; or
(ii) A period of eligibility under §§ 21.41 through 21.44 or 38 U.S.C. 3103.
(2) The individual was entitled to disability compensation under 38 U.S.C. chapter 11 during the period or would likely have been entitled to that compensation but for active-duty service.
(3) The individual met the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. chapter 31 in effect during the period.
(4) VA determines that the individual’s training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual (see §§ 21.80 through 21.88, and §§ 21.92 through 21.96).
(5) VA has recouped any benefits that it paid the individual for education or training pursued under any VA education program during any portion of the period.
(6) An initial evaluation was completed under § 21.50.
(7) A period of extended evaluation is not needed to be able to determine the reasonable feasibility of the achievement of a vocational goal.
(d) Effective date for retroactive induction. The effective date for retroactive induction is the date when all the entitlement conditions set forth in paragraph (c) of this section are met, and for a veteran (except as to a period prior to discharge from active duty) in no event before the effective date of a VA rating under 38 U.S.C. chapter 11 establishing a qualifying level under § 21.40 of service-connected disability.
§ 21.283 Rehabilitated.
(a) General. For purposes of chapter 31 a veteran shall be declared rehabilitated when he or she has overcome the employment handicap to the maximum extent feasible as described in paragraph (c), (d) or (e) of this section.
(b) Definition. The term “suitably employed” includes employment in the competitive labor market, sheltered situations, or on a nonpay basis which is consistent with the veteran’s abilities, aptitudes and interests if the criteria contained in paragraph (c) (1) or (2) of this section are otherwise met.
(c) Rehabilitation to the point of employability has been achieved. The veteran who has been found rehabilitated to the point of employability shall be declared rehabilitated if he or she:
(1) Is employed in the occupational objective for which a program of services was provided or in a closely related occupation for at least 60 continuous days;
(2) Is employed in an occupation unrelated to the occupational objective of the veteran’s rehabilitation plan for at least 60 continuous days if the veteran concurs in the change and such employment:
(i) Follows intensive, yet unsuccessful, efforts to secure employment for the veteran in the occupation objective of a rehabilitation plan for a closely related occupation contained in the veteran’s rehabilitation plan;
(ii) Is consistent with the veterans’s aptitudes, interests, and abilities; and
(iii) Utilizes some of the academic, technical or professional knowledge and skills obtained under the rehabilitation plan; or
(3) Pursues additional education or training, in lieu of obtaining employment, after completing his or her prescribed program of training and rehabilitation services if:
(i) The additional education or training is not approvable as part of the veteran’s rehabilitation program under this chapter; and
(ii) Achievement of employment consistent with the veterans’s aptitudes, interests, and abilities will be enhanced by the completion of the additional education or training.
(d) Rehabilitation to the point of employability has not been completed. A veteran under a rehabilitation plan who obtains employment without being declared rehabilitated to the point of employability as contemplated by the plan, including a veteran in a rehabilitation program consisting solely of employment services, is considered to be rehabilitated if the following conditions exist:
(1) The veteran obtains and retains employment substantially using the services and assistance provided under the plan for rehabilitation.
(2) The employment obtained is consistent with the veterans’s abilities, aptitudes and interests.
(3) Maximum services feasible to assist the veteran to retain the employment obtained have been provided.
(4) The veteran has maintained the employment for at least 60 continuous days.
(e) Independent living. A veteran who has pursued a program of independent living services will be considered rehabilitated when all goals of the program have been achieved, or if not achieved, when:
(1) The veteran, nevertheless, has attained a substantial increase in the level of independence with the program assistance provided;
(2) The veteran has maintained the increased level of independence for at least 60 days; and
(3) Further assistance is unlikely to significantly increase the veteran’s level of independence.
§ 21.284 Reentrance into a rehabilitation program.
(a) Reentrance into rehabilitation to the point of employability following a determination of rehabilitation. A veteran who has been found rehabilitated under provisions of § 21.283 may be provided an additional period of training or services only if the following conditions are met:
(1) The veteran has a compensable service-connected disability and either;
(2) Current facts, including any relevant medical findings, establish that the veteran’s service-connected disability has worsened to the extent that the effects of the service-connected disability considered in relation to other facts precludes him or her from performing the duties of the occupation for which the veteran previously was found rehabilitated; or
(3) The occupation for which the veteran previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of the veteran’s specific employment handicap and capabilities.
(b) Reentrance into a program of independent living services following a determination of rehabilitation. A finding of rehabilitation following a program of independent living services may only be set aside, and an additional period of independent living services provided, if the following conditions are met:
(1) Either:
(i) The veteran’s condition has worsened and as a result the veteran has sustained a substantial loss of independence; or
(ii) Other changes in the veteran’s circumstances have caused a substantial loss of independence; and
(2) The provisions of § 21.162 pertaining to participation in a program of independent living services are met.
(c) Reentrance into rehabilitation to the point of employability during a period of employment services. A finding of rehabilitation to the point of employability by VA may be set aside during a period of employment services and an additional period of training and related services provided, if any of the following conditions are met:
(1) The conditions for setting aside a finding of rehabilitation under paragraph (a) of this section are found;
(2) The rehabilitation services originally given to the veteran are now inadequate to make the veteran employable in the occupation for which he or she pursued rehabilitation;
(3) Experience during the period of employment services has demonstrated that employment in the objective or field for which the veteran was rehabilitated to the point of employability should not reasonably have been expected at the time the program was originally developed; or
(4) The veteran, because of technological change which occurred subsequent to the declaration of rehabilitation to the point of employability, is no longer able:
(i) To perform the duties of the occupation for which he or she trained, or in a related occupation; or
(ii) To secure employment in the occupation for which he or she trained, or in a related occupation.
Course Approval and Facility Selection
§ 21.290 Training and rehabilitation resources.
(a) General. For the purpose of providing training and rehabilitation services under Chapter 31 VA may:
(1) Use facilities, staff and other resources of VA;
(2) Employ any additional personnel and experts needed;
(3) Use the facilities and services of any:
(i) Federal agency;
(ii) State agency;
(iii) Other public agency; or
(iv) Agency maintained by joint Federal and state contributions.
(4) Use the facilities and services of any:
(i) Public institution or establishment;
(ii) Private institution or establishment; or
(iii) Private individual.
(b) Agreement required. Use of facilities and services provided under paragraph (a) of this section shall be procured through contract, agreement, or other cooperative arrangement. The specific requirements for use of contracts or other arrangements are described in 48 CFR 871.2.
§ 21.292 Course approvals.
(a) Courses must be approved. Only those courses approved by the Department of Veterans Affairs shall be utilized to provide training and rehabilitation services under Chapter 31.
(b) General. VA staff in consultation with the veteran will select courses and services needed to carry out the rehabilitation plan only from those which VA determines are offered by a training or rehabilitation facility which:
(1) Meets the requirements of §§ 21.120 through 21.162;
(2) Meets the criteria of §§ 21.290 through 21.299; and
(3) Is in compliance with Title VI of the Civil Rights Act of 1964, section 503(a) Veterans Readjustment Act of 1972, and sections 501 through 504 of the Rehabilitation Act of 1973.
(c) Obtaining information necessary for approval. In determining whether services and courses may be approved for a veteran’s training and rehabilitation under Chapter 31, the Department of Veterans Affairs may use information relevant to the approval or certification of such services and courses for similar purposes developed by:
(1) The State approving agencies;
(2) The Department of Labor;
(3) State vocational rehabilitation agencies;
(4) Nationally recognized accrediting associations;
(5) The Committee on Accreditation of Rehabilitation Facilities; and
(6) Other organizations and agencies.
(d) Course not approved. If a course or program is not approved by one of the agencies identified in paragraph (c) of this section, Veteran Readiness and Employment (VR&E) staff shall develop necessary information to determine whether criteria given in paragraphs (a) and (b) of this section are met.
(e) Course disapproved. The VR&E Officer may approve for 38 U.S.C. chapter 31 use courses that one of the agencies in paragraph (c) of this section has disapproved.
§ 21.294 Selecting the training or rehabilitation facility.
(a) Criteria the facility must meet. In addition to approval of the courses offered, all facilities which provide training and rehabilitation services under Chapter 31 must meet the criteria contained in §§ 21.290 through 21.299 applicable to the type of facility. Each facility must:
(1) Have space, equipment, instructional material and instructor personnel adequate in kind, quality, and amount to provide the desired service for the veteran;
(2) Fully accept the obligation to give the training or rehabilitation services in all parts of the plan which call for the facility’s participation;
(3) Provide courses or services which:
(i) Meet the customary requirements in the locality for employment in the occupation in which training is given when employment is the objective of the program; and
(ii) Meet the requirements for licensure or permit to practice the occupation, if such is required;
(4) Agree:
(i) To cooperate with VA, and
(ii) To provide timely and accurate information covering the veteran’s attendance, performance, and progress in training in the manner prescribed by VA.
(b) Selecting a facility for provision of independent living services. (1) Facilities offering independent living services will be utilized to:
(i) Evaluate independent living potential;
(ii) Provide a program of independent living services to veterans for whom an IILP (Individualized Independent Living Plan) has been developed; or
(iii) Provide independent living services to veterans as part of an IWRP (Individualized Written Rehabilitation Plan) or an IEEP (Individualized Extended Evaluation Plan).
(2) VA may use public and nonprofit agencies and facilities to furnish independent living services. Public and nonprofit facilities may be:
(i) Veterans Health Administration (VHA) facilities that provide independent living services;
(ii) Facilities which meet standards established by the State rehabilitation agency for rehabilitation facilities or for providers of independent living services;
(iii) Facilities which are neither approved nor disapproved by the State rehabilitation agency, but are determined by VA as able to provide the services necessary in an individual veteran’s case.
(3) VA also may use for-profit agencies and organizations to furnish programs of independent living services only if services comparable in effectiveness to those provided by for-profit agencies and organizations:
(i) Are not available through public or nonprofit agencies or VHA; or
(ii) Cannot be obtained cost-effectively from public or nonprofit agencies or VHA.
(4) In addition to the criteria described in paragraph (b)(3)(i) of this section for public and private nonprofit agencies; for-profit agencies and organizations must meet any additional standards established by local, state (including the State rehabilitation agency), and Federal agencies which are applicable to for-profit facilities and agencies offering independent living services.
(c) Use of facilities. VA policy shall be to use VA facilities, if available, to provide rehabilitation services for veterans in a rehabilitation program under chapter 31. Non-VA facilities may be used to provide rehabilitation services only when necessary services are not readily available at a VHA facility. This policy shall be implemented in accordance with the provisions of paragraph (b) of this section in the case of the use of for-profit facilities to provide programs of independent living services, or in the case of employment services, provision of such services by non-VA sources is permitted under § 21.252.
(d) Selection of individual to provide training or rehabilitation services. Persons selected to provide individual instruction or other services as part of a program leading to the long-range goal of a veteran’s plan must meet one of the following criteria:
(1) State requirements for teaching in the field or occupation for which training is being provided; or
(2) Expertise demonstrated through employment in the field in which the veteran is to be trained; or
(3) Requirements established by professional associations to provide the services needed by the veteran.
(e) Relatives. Relatives of the veteran may not be selected to provide services, even if otherwise qualified, unless such use is specifically permitted by VA regulation governing provision of the service. Selection of a training or rehabilitation facility owned by the veteran or a relative, or in which the veteran or a relative of the veteran has an interest is precluded, except for selection of a farm as provided in § 21.298. The term relative has the same meaning as in § 21.374.
(f) Contracts or agreements required. The Department of Veterans Affairs will negotiate formal contracts for reimbursement to providers of services as required by § 21.262. However, a letter contract will be effected immediately to permit the induction of the veteran into a program if:
(1) The veteran is immediately entered into a school with which a contract is required;
(2) The veteran’s rehabilitation plan will be jeopardized by withholding services until a contract can be completed; and
(3) There are no known reasons to indicate that a contract may not be completed in a reasonable time.
(g) Training outside the United States. VA may only use those facilities and courses outside the United States to provide training under Chapter 31 which meet requirements for approval under §§ 21.4250(c) and 21.4260. The conditions under which training outside the United States may be approved are contained in § 21.130.
(h) Flight training. Flight training may only be provided in educational institutions which offer a standard college degree. The specific conditions under which flight training may be approved are contained in § 21.134.
(i) Additional consideration. The case manager will consider the veteran’s preference for a particular training or rehabilitation facility but VA has final responsibility for selection of the facility.
§ 21.296 Selecting a training establishment for on-job training.
(a) Additional criteria for selecting a training establishment. In addition to meeting all of the requirements of § 21.294 the training establishment must:
(1) Sign an agreement to provide on-job training to disabled veterans;
(2) Provide continuous training for each veteran without interruption except for normal holidays and vacation periods;
(3) Provide daytime training for the veteran except when the veteran cannot obtain necessary on-job or related training during the working hours of the day;
(4) Modify the program when necessary to compensate for the limitations resulting from the veteran’s disability or needs;
(5) Organize training into definite steps or units which will result in progressive training;
(6) Encourage rapid progress of each veteran rather than limit the progress of the individual to the progress of the group;
(7) Not, during the period of training, use the veteran on production activities beyond the point of efficient training;
(8) Agree to pay the veteran during training (except as provided in paragraph (b) of this section) a salary or wage rate;
(i) Commensurate with the value of the veteran’s productive labor,
(ii) Not less than that prescribed by the Fair Labor Standards Act of 1938, as amended, and
(iii) Not less than that customarily paid to nonveteran-trainees in the same or similar training situation;
(9) Agree to provide the veteran with employment at the end of the training program, provided the veteran’s conduct and progress have been satisfactory; and
(10) Agree to furnish VA a statement in writing showing wages, compensation, and other income paid directly or indirectly to each veteran in training under Chapter 31 during the month.
(b) On-job training at subminimum wage rates. A subminimum hourly wage rate for handicapped workers may be considered where necessary in order to prevent curtailment of opportunities for employment. Payment at the subminimum rate must be approved by the Wage and Hour Division of the Department of Labor.
§ 21.298 Selecting a farm.
(a) Control of the farm – farm operator. A farm selected for farm cooperative training must be under the control of the veteran by ownership, lease or other written tenure arrangement. If the veteran does not own the farm, the lease or other written agreement shall:
(1) Afford the veteran control of the farm at least until the end of his or her course;
(2) Allow the veteran’s control to be such that he or she is able:
(i) To carry out the provisions of the training program; and
(ii) To operate the farm in accordance with the farm and home plan developed by the case manager and the veteran in collaboration with the instructor, and when appropriate, the landowner or lessor;
(3) Permit instruction in the planning, management, and operation of farming enterprise in the veteran’s farm and home plan;
(4) At least by the end of the necessary minimum period of training, assure the veteran a reasonably satisfactory living under normal economic conditions;
(5) Provide for the necessary buildings and equipment to enable the veteran to satisfactorily begin pursuit of the course of farm cooperative training;
(6) Provide for resources which give reasonable promise that any additional items required for the pursuit of the course, including livestock, will be available as they become necessary;
(7) Provide for capital improvements to be made which are necessary for carrying out the farm and home plan, with the veteran furnishing no greater portion of the costs than the benefits accruing to the veteran warrant; and
(8) Provide for the landowner or leasor to share the costs of improved practices put into effect in proportion to the returns he or she will receive from such practices.
(b) Farms on which more than one person trains – farm operator. If a veteran in training is a partner of another person or if more than one person is involved in operating the farm, the farm shall be of such size and character that the farm:
(1) Together with the instruction part of the course will occupy the full time of the veteran; and
(2) Meets all requirements of paragraph (a) of this section.
(c) Selecting a farm – farm manager. The farm on which a veteran trains to become a farm manager shall be of such size and character that, together with the group instruction part of the course the farm:
(1) Will occupy the full time of the veteran;
(2) Will permit instruction in all aspects of the management and operation of a farm of the type for which the veteran is being trained; and
(3) Meets the requirements of paragraph (a) of this section.
(d) Employer agreement. VA may approve a farm on which a veteran is to train to become a farm manager only if the employer-trainer agrees:
(1) To instruct the veteran in various aspects of farm management in accordance with the individual’s plan;
(2) To pay the veteran for each successive period of training a salary or wage rate:
(i) Commensurate with the value of the veteran’s productive labor; and
(ii) Not less than that customarily paid to a nonveteran trainee in the same or similar training situation in that community; and
(3) To employ the veteran as a manager of the farm on which he or she is being trained if his or her conduct and progress remain satisfactory, or assure that the veteran will be employed as manager of a specified comparable farm.
§ 21.299 Use of Government facilities for on-job training or work experience at no or nominal pay.
(a) Types of facilities which may be used to provide training. Notwithstanding any other provision of regulations governing chapter 31, the facilities of any agency of the United States or of any State or local government receiving Federal financial assistance may be used to provide training or work experience at no or nominal pay as all or part of the veteran’s program of vocational training under §§ 21.123, 21.294, and 21.296 of this part. The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) and case manager must determine that the training work experience is necessary to accomplish vocational rehabilitation and providing such training or work experience is in the best interest of the veteran and the Federal government.
(b) Employment status of veterans. (1) While pursuing on-job training or work experience in a facility of the United States, a veteran:
(i) Shall be deemed to be an employee of the United States for the purposes of benefits under chapter 81, title 5 U.S.C.; but
(ii) Shall not be deemed an employee of the United States for the purpose of laws administered by the Office of Personnel Management.
(2) While pursuing on-job training or work experience in a State or local government agency the veteran shall have the employment status and rights comparable to those provided in paragraph (b)(1) of this section for a veteran pursuing on-job training or work experience at a Federal agency.
(c) Terms applicable to training in State and local government. (1) The term State means each of the several States Territories, any possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(2) The term local government agency means an administrative subdivision of a government including a county, municipality, city, town, township, public authority, district, school district, or other such agency or instrumentality of a local government.
(3) The term Federal financial assistance means the direct or indirect provision of funds by grant, loan, contract, or any other arrangement by the Federal government to a State or local government agency.
(d) Additional considerations in providing on-job training and work experience in State and local government agencies. (1) The veteran’s progress and adjustment in a rehabilitation program conducted wholly or in part at a State or local government agency shall be closely monitored by Veteran Readiness and Employment (VR&E) staff members to assure that:
(i) Training and rehabilitation services are provided in accordance with the veteran’s rehabilitation plan. The plan shall provide for:
(A) Close supervision of the veteran’s progress and adjustment by the case manager during the period he or she is at the State or local government agency; and
(B) The employer’s periodic certification (not less than once every three months) that the veteran’s progress and adjustment are in accordance with the program which has been jointly developed by VA, the veteran and the employer; and
(ii) The veteran achieves his or her employment goal.
(2) Training may not be provided for a position which involves religious or political activities;
(3) The veteran’s training:
(i) Will not result in the displacement of currently employed workers; and
(ii) Will not be in a job while another person is laid off from a substantially equivalent job, or will not be in a job the opening for which was created as a result of the employer having terminated the employment of any regular employee or otherwise having reduced its workforce with the intention of using the opening for a Chapter 31 trainee.
Rate of Pursuit
§ 21.310 Rate of pursuit of a rehabilitation program.
(a) Programs offered at educational institutions. This section provides policy for determining the full-time and part-time rate of pursuit of a rehabilitation program by a veteran whose ability to pursue a program has not been reduced by the effects of disability.
(1) Measuring full and part-time training. VA will measure the full-time and part-time rate of pursuit of training offered at educational institutions according to the criteria found in §§ 21.4270 through 21.4275, except as provided in paragraphs (a) (2) and (3) of this section.
(2) Independent study course. (i) For certain seriously disabled veterans described in subdivision (i)(A) of this subparagraph VA may measure the veteran’s enrollment:
(A) In an independent study course as half-time or greater training, or
(B) Both in independent study subjects and subjects requiring class attendance on the basis of the combined training load when the number of credit hours of independent study equals or exceeds the number of other credit hours.
(ii) To qualify for measurement described in paragraph (a)(2)(i) of this section:
(A) The seriously disabled veteran must have a disability or circumstances which preclude regular attendance at an institution of higher learning, and
(B) Independent study must be a sound method for providing the training necessary for restoring the veteran’s employability.
(iii) In all other cases VA will measure independent study according to the provisions of § 21.4280.
(3) Special school. If training is pursued in a special school, such as those for persons with visual or hearing disabilities, the rate of pursuit will be measured under §§ 21.2470 through 21.4275 unless it is the established policy of the school to measure the rate of pursuit for full-time or particular level or part-time training based upon fewer semester, credit, or clock hours of attendance than prescribed in these regulations.
(4) Farm cooperative. If training in a farm cooperative program is provided by an educational institution, the rate of pursuit shall be determined the same as under § 21.4270 for that type of training.
(5) Course offered under contract. When a school or other entity furnishes all or part of a vocational rehabilitation program under contact with another school, VA will measure the course or courses as appropriate for the school or other entity actually providing the training.
(b) Education or training not furnished by an educational institution. The following types of training which are not furnished by an educational institution (§ 21.35(k)(3) may only be pursued full-time:
(1) On-job training. Full-time training in an on-job program is the lesser of the number of hours in the prevailing workweek for:
(i) Journeyman employees in the same job categories at the establishment where training is being provided;
(ii) Other persons in on-job training for the same or similar occupations at the facility where the veteran is training or at other facilities in the locality.
(2) Farm cooperative training. If training in a farm cooperative program is provided by an individual instructor, the full-time rate of pursuit must meet the requirements of § 21.126.
(3) Independent instructor. The full-time rate of pursuit for a veteran in an independent instructor program must meet the requirements of § 21.146.
(4) Training in the home. The full-time rate for a training program provided in the veteran’s home must meet the requirements of § 21.146.
(5) Vocational course in a rehabilitation facility or sheltered workshop. A vocational course of training offered by a rehabilitation facility or sheltered workshop (§ 21.35(k) (5) and (6)), will be measured under provisions of § 21.4270(b) for trade or technical nonaccredited courses, unless it is the established policy of the facility to measure the rate of pursuit for full-time or a particular level of part-time training based upon fewer clock hours of attendance than provided in that regulation.
(c) Combination and cooperative programs. The rate of pursuit of a program which combines institutional training and on job training will be measured as follows:
(1) The institutional part will be assessed under §§ 21.4270 through 21.4275, and
(2) The on-the-job part will be assessed under paragraph (b)(1) of this section.
(d) Rehabilitative services. Measurement of the rate of pursuit for veterans in programs consisting primarily of services designed to evaluate and improve physical and psychological functioning will be assessed under this paragraph.
(1) The services assessed under this paragraph include:
(i) Evaluation and improvement of the rehabilitation potential of a veteran for whom attainment of a vocational goal is reasonably feasible;
(ii) Extended evaluation to determine whether attainment of a vocational goal is reasonably feasible; or
(iii) A program of independent living services to enable a veteran to function more independently in his or her family and community when attainment of a vocational goal is not reasonably feasible.
(2) Measurement of the rate of pursuit for services and programs named in paragraph (d)(1) of this section will be:
(i) As provided in paragraph (a) of this section for services furnished by educational institutions; or
(ii) According to the noneducational facility’s customary criteria for full-time and part-time pursuit. If the facility does not have established criteria for full-time and part-time pursuit, or services are being provided by more than one facility, the rate of pursuit will be assessed in the following manner:
| Rate of pursuit | Clock hours per month |
|---|---|
| Full-time | 120 or more. |
| Three-quarter time 1 | 90-119. |
| Half-time 1 | 60-89. |
| Quarter-time 1 | 30-59. |
1 Extended evaluation and independent living.
§ 21.312 Reduced work tolerance.
(a) General. VA will consider that a veteran with reduced work tolerance is pursuing a rehabilitation program full-time when the amount of time the veteran is devoting to his or her program is as great as the effects of his or her disability (service and nonservice-connected) will permit.
(b) Pursuit of a program. A veteran with reduced work tolerance may pursue a rehabilitation program when the following conditions are met:
(1) Reduced work tolerance has been determined.
(2) Achievement of the goals of the program are reasonably feasible;
(3) The IWRP (Individualized Written Rehabilitation Plan) or other plan provides for completion of the program under Chapter 31.
(c) Redetermination of work tolerance. As necessary, but not less than once yearly, the veteran’s work tolerance will be reevaluated. The rate of pursuit required to meet the standard of full-time pursuit will be modified if there is either an increase or decrease in the work tolerance of the veteran.
(d) Payment of allowance. A veteran with a reduced work tolerance will be paid a subsistence allowance, at the full-time rate for the type of program being pursued, when the veteran meets the standard for full-time pursuit established for him or her in the Plan. A veteran with reduced work tolerance, who elects benefits at the Chapter 34 rate, will have to meet normal attendance requirements for that chapter, however.
(e) Determining work tolerance. A VA physician will make all determinations and redeterminations of work tolerance.
§ 21.314 Pursuit of training under special conditions.
A veteran is required to pursue a rehabilitation program at a rate which meets the requirement for full- or part-time participation described in §§ 21.310 and 21.312. However, a veteran may pursue a rehabilitation program at a lesser rate, if such pursuit is a part of the veteran’s plan. Subsistence allowance is not payable during such periods.
Authorization of Subsistence Allowance and Training and Rehabilitation Services
Awards providing for payment of a subsistence allowance and authorization of services necessary for rehabilitation may be prepared when an IWRP (Individualized Written Rehabilitation Plan) or other plan has been completed and other requirements for entrance or reentrance into a rehabilitation program have been met.
(a) Commencing date of subsistence allowance. The commencing date of an award of subsistence allowance will be determined under the provisions of § 21.322.
(b) Commencing date of authorization of training and rehabilitation services. The commencing date for authorization of training and rehabilitation services is the same as the effective date for awards for subsistence allowance under provisions of § 21.322, except when:
(1) The commencing date for authorization of a program of employment services is determined under provisions of § 21.326;
(2) An earlier commencement date is established in the veteran’s plan or the veteran is entitled to earlier induction under § 21.282;
(3) The veteran elects payment at the educational assistance allowance rate, in which case the commencing date of payment is determined under provisions applicable to commencement of payment under Chapter 30.
(c) Ending date of subsistence allowance. The ending date of an award for subsistence allowance will be the earliest of the following dates:
(1) The ending date provided in the veteran’s IWRP or other plan;
(2) The ending date of a period of enrollment as certified by a training or rehabilitation facility;
(3) The ending date specified in § 21.324.
(d) Ending date for training and rehabilitation services. The ending date of training and rehabilitation services will be the same as the termination date for subsistence allowance under paragraph (c) of this section, except when:
(1) The ending date for a period of employment services is determined under provisions of § 21.326;
(2) A later termination date is established in the veteran’s plan;
(3) A veteran has elected payment at the educational assistance rate paid under Chapter 30. The ending date of the award is determined under regulations applicable to termination of training under Chapter 30.
§ 21.322 Commencing dates of subsistence allowance.
(a) General. VA will determine the commencing date of an award or increased award of subsistence allowance under this section. VA will not authorize subsistence allowance for any period prior to the earliest date for which disability compensation is payable or would be payable but for the veteran’s receipt of retired pay.
(b) Entrance or reentrance into vocational rehabilitation, extended evaluation, independent living services. Except in the case of retroactive induction into a rehabilitation program, as provided in § 21.282, the commencing date of an award of subsistence allowance shall be the earlier of:
(1) The date the facility requires the veteran to report for prescribed activities; or
(2) The date training or rehabilitation services begin.
(c) Increases for dependents – (1) Dependency exists at the time of entrance or reentrance into a rehabilitation program. A veteran may have one or more dependents on or before the date he or she enters or reenters a rehabilitation program. When this occurs, the following rules apply:
(i) The effective date of the increase will be the date of entrance or reentrance if:
(A) VA receives the claim for the increase within one year of the date of entrance or reentrance; and
(B) VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period of submission of the evidence is adjusted in accordance with § 21.32 of this part.
(ii) The effective date of the increase will be the date VA receives notice of the dependents existence if:
(A) VA receives the claim for the increase more than one year after the date of entrance or reentrance; and
(B) VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part;
(iii) The effective date of the increase will be the date VA receives all necessary evidence if that evidence is received more than one year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(2) Dependency arises after entrance or reentrance into a rehabilitation program. If the veteran acquires a dependent after he or she enters or reenters a rehabilitation program, the increase will be effective on the latest of the following dates:
(i) Date of claim. This term means the following listed in order of their applicability:
(A) Date of the veteran’s marriage, or birth of his or her child, or his or her adoption of a child, if the evidence of the event is received within one year from the date of the event;
(B) Date notice is received of the dependents’s existence if evidence is received within 1 year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(C) Date VA receives evidence of the dependent’s existence if this date is more than one year after VA requested this evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of the time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(ii) Date dependency arises – (3) Increased award not permitted. No increased award for dependency may be paid prior to the date the law permits benefits for dependents generally.
(d) Correction of military records. In accordance with the facts found, but not earlier than the date the change, correction, or modification was made by the service department, if eligibility of a veteran arises as the result of correction or modification of military records under 10 U.S.C. 1552, or change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other competent military authority.
(e) Bar to benefits removed by VA. In accordance with the facts found, but not earlier than the date the change was made by VA, if eligibility of a veteran arises as the result of review of the evidence of record regarding the character of discharge by VA, when the veteran’s discharge or dismissal was a bar to benefits under 38 U.S.C. 5301.
(f) Incarcerated veterans. (1) Date of release from Federal, State, or local penal institution of a veteran incarcerated for conviction of a felony.
(2) Earlier of the following dates in the case of a veteran residing in a half-way house or participating in a work-release program as a result of a felony conviction.
(i) Date of release from the half-way house or work-release program, or
(ii) Date a veteran becomes obligated to pay part of his or her living expenses.
(g) Temporary 100 percent award terminated. Date of reduction of a temporary award of disability compensation at the 100 percent rate because of hospitalization.
(h) Liberalizing laws and VA issues. In accordance with facts found, but not earlier than the date of the act or administrative issue.
See § 21.260(c) for definition of dependents.
§ 21.324 Reduction or termination dates of subsistence allowance.
(a) General. The effective date of the reduction of the amount paid or termination of payment of subsistence allowance will be the earliest of the dates specified in this section. If an award is reduced, the reduced rate will be effective the day following the date of termination of the greater benefit.
(b) Death of a veteran. Date of death, if death occurs while the veteran is in attendance or authorized leave status; otherwise date of last attendance.
(c) Death of a dependent. (1) Before October 1, 1982. Last day of the calendar year in which death occurs, unless the veteran’s program is terminated earlier under other provisions.
(2) After September 30, 1982. Last day of the month in which death occurs unless discontinuance is required at an earlier date under other provisions.
(d) Divorce – (1) Before October 1, 1982. Last day of the calendar year in which divorce occurs, unless the veteran’s program is terminated earlier under other provisions.
(2) After September 30, 1982. Last day of the month in which divorce occurs unless discontinuance is required at an earlier date under other provisions.
(e) Child – (1) Marriage – (i) Before October 1, 1982. Last day of the month in which the marriage occurs, unless the veteran’s program is terminated earlier under other provisions.
(ii) After September 30, 1982. Last day of the month in which the marriage occurs, unless discontinuance is required at an earlier date under other provisions.
(2) Age 18. Day preceding the child’s 18th birthday.
(3) School attendance.
(i) Last day of the month in which the child ceases attending school; or
(ii) The day preceding the child’s 23rd birthday, whichever is earlier.
(4) Helplessness. Last day of the month in which 60 days has passed from VA’s notice to the payee that the child’s helplessness has ceased.
(f) Interrupted, rehabilitation to the point of employability, independent living program completed, and extended evaluation completed status. Last day of attendance, or approved leave status, whichever is applicable.
(g) Discontinued. Last day of attendance or approved leave status, whichever is applicable, except as follows:
(1) If VA places the veteran in “discontinued” status following the veteran’s withdrawal from all courses with nonpunitive grades or following his or her completion of all courses with nonpunitive grades and the case manager does not find mitigating circumstances, VA will terminate subsistence allowance effective:
(i) The first date of the term, or
(ii) December 1, 1976, whichever is later.
(2) If VA places the veteran in “discontinued” status following a term in which the grades the veteran receives include both those that count in the grade point average and nonpunitive grades, and the case manager does not find mitigating circumstances:
(i) VA will terminate subsistence allowance for courses in which the veteran receives nonpunitive grades effective the first day of the term or December 1, 1976, whichever is later.
(ii) VA will terminate subsistence allowance for courses in which the veteran receives grades that will count in the grade point average effective the veteran’s last day of attendance or approved leave status, whichever is applicable.
(h) Wages or salary received in apprentice or on-job training. (1) If the sum of the training wage plus the scheduled subsistence allowance is more than the journeyman wage when the training commences, the subsistence allowance will be decreased by VA effective the first day of the second month following the month in which the veteran enters on-job training.
(2) Subsequent adjustments will be effective the first day of the second month following the month in which wages or salary changes are made which justify the adjustment under provisions of § 21.266(e).
(i) Reduction in rate of pursuit of the program. End of month in which reduction occurs, except that if the rate of pursuit is reduced as a result of the veteran’s withdrawal from a unit course or courses with nonpunitive grade(s) or as a result of the veteran’s completion of a unit course or courses with nonpunitive grade(s) (§ 21.4200(j)), VA will reduce subsistence allowance as follows:
(1) If it is determined that there are mitigating circumstances:
(i) Withdrawal with nonpunitive grades: The end of the month or the end of the term in which the veteran withdraws, whichever is earlier; if the reduction occurs at the beginning of the term benefits will be reduced the first day of the term in which the veteran withdraws.
(ii) Completion with nonpunitive grades. No reduction required.
(2) If it is determined there are no mitigating circumstances VA will reduce the veteran’s subsistence allowance effective the first day of the term in which the veteran withdraws or which the veteran completes with nonpunitive grades. The term mitigating circumstances means circumstances beyond the veteran’s or serviceperson’s control which prevent him or her from continuously pursuing a rehabilitation program. The following circumstances are representative of those which are considered mitigating.
(i) An illness of the program participant;
(ii) An illness or death in the program participant’s family;
(iii) An unavoidable change in the veteran’s conditions of employment;
(iv) An unavoidable geographical transfer resulting from the veteran’s employment;
(v) Immediate family or financial obligations beyond the control of the veteran which are found by VA to require the veteran to suspend pursuit of the rehabilitation program;
(vi) Discontinuance of the course by the educational institution;
(vii) In the first instance of withdrawal on or after June 1, 1989 by a program participant from a course or courses with respect to which such veteran has been paid subsistence allowance under the provisions of § 21.260(b), mitigating circumstances shall be considered to exist with respect to courses totaling not more than six semester hours or the equivalent thereof;
(viii) Difficulties in obtaining child care or changes in such arrangements which are beyond the control of the program participant and which require interruption of the rehabilitation program is order for the participant to provide or arrange for such care.
(j) Severance of service-connection. Last day of the month in which the severance becomes final.
(k) Fraud. The later of the following dates:
(1) The beginning date of the award of subsistence allowance, or
(2) The day preceding the date of the fraudulent act.
(l) Error – (1) Payee error. Effective date of the award of subsistence allowance or day preceding the act, whichever is later, but not prior to the date the veteran’s entitlement ceases, on an erroneous award based on an act of commission or omission by a payee with his or her knowledge.
(2) Administrative error. Except as provided in paragraph (j) of this section, date of last payment on an erroneous award based solely on administrative error or an error in judgment by a VA employee.
(m) Treasonable acts, subversive activities. The later of the following dates:
(1) Beginning date of the award of subsistence allowance, or
(2) Day preceding the date of commission of the treasonable act or subversive activities for which the veteran is convicted.
(n) Incarceration in prison or jail – (1) Felony conviction. If a veteran’s subsistence allowance must be reduced because of incarceration for a felony conviction under provisions of § 21.276, his or her rate of payment will be reduced the later of:
(i) The date of his or her incarceration in a prison or jail; or
(ii) The commencing date of his or her award as determined by § 21.322.
(2) Halfway house or work-release program. The subsistence allowance of a veteran in a halfway house or work release program as a result of conviction of a felony will not be reduced under the provisions of § 21.276 the date on which the Federal Government or a State or local government pays all of the veteran’s living expenses.
(o) Specialized rehabilitation facility. Date payment for room and board by VA begins, reduce the rate paid to the amount payable for dependents.
(p) Termination of subsistence allowance while hospitalized at VA expense. Date before the beginning date of the increased disability compensation award, which results in a reduced subsistence allowance under the provisions of § 21.266.
§ 21.326 Authorization of employment services.
(a) General. Authorization of employment services shall be based upon the services identified and goals established in an IEAP (Individualized Employment Assistance Plan) under provisions of § 21.88. The effective dates for the commencement, or termination of such services will be determined under this section.
(b) Commencing date. The commencing date authorizing a period of employment services will be the later of:
(1) The date following completion of the period of rehabilitation to the point of employability; or
(2) The date of the original IEAP.
(c) Termination of the authorization of employment services. Authorization for employment services will be terminated the earliest of:
(1) The last day employment services are provided under the terms of an IEAP when employment services are interrupted, discontinued, or the veteran is rehabilitated;
(2) The date the authorization is found to be erroneous because of an act of omission or commission by the veteran, or with his or her knowledge;
(3) The last day of the month in which severance of service connection becomes final;
(4) The day proceding the date of a fraudulent act;
(5) The date preceding the commission of a treasonable or subversive act for which the veteran is convicted.
§ 21.328 Two veteran cases – dependents.
If both partners in a marriage are veterans, and if each is receiving either subsistence allowance for a vocational rehabilitation program or an educational assistance allowance under another VA program, each is entitled to receive the additional allowances payable for each other and for their children.
§ 21.330 Apportionment.
(a) General. Where in order, VA will apportion subsistence allowance in accordance with § 3.451 of this title, subject to the limitations of § 3.458 of this title. If the veteran is in receipt of benefits at the Chapter 30 rate, VA will not apportion these benefits.
(b) Effective date. The effective date of apportionment will be as prescribed in § 3.400(e) of this title.
(c) Child adopted out of family. Where evidence establishes that a veteran is the natural parent of a child or children legally adopted outside of the veteran’s family, VA will apportion in favor of the child or children only that additional amount of subsistence allowance payable on account of the existence of the child or children. The veteran is not entitled in his or her own right to the additional amount of subsistence allowance payable for the child because of the existence of the child unless the veteran is contributing to the child’s support.
(d) Veteran convicted of a felony. The subsistence allowance of a veteran in a rehabilitation program after October 17, 1980, may not be apportioned if the veteran is incarcerated because of conviction for a felony.
§ 21.332 Payments of subsistence allowance.
(a) Eligibility. At the end of the month, VA shall pay to an eligible veteran enrolled in a rehabilitation program, subsistence allowance at the rates specified in § 21.260 for the type of program pursued during the month, unless advance payment is approved. VA will continue payments during those intervals described in § 21.270.
(b) Advance payment criteria. VA will make an advance payment of subsistence allowance only when:
(1) The veteran specifically requests an advance payment; and
(2) The educational institution at which the veteran is accepted or enrolled has agreed to, and can carry out, satisfactorily, the provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to:
(i) Receipt, delivery or return of advance checks; and
(ii) Certifications of delivery and enrollment.
(c) Advance payment. (1) The amount of advance payment is not to exceed:
(i) The veteran’s subsistence allowance for the month or part of a month in which his or her course will begin; plus
(ii) The veteran’s subsistence allowance for the following month.
(2) Upon application and completion of arrangements for enrollment of a veteran who meets the criteria for an advance payment, VA shall mail a check payable to the veteran to the institution for delivery to the veteran upon registration.
(3) An institution shall not deliver an advance payment check to a veteran more than 30 days in advance of commencement of his or her program.
(d) Certification for advance payment. VA will authorize advance payment upon receipt of the institution’s certification of the following information:
(1) The veteran is eligible for benefits;
(2) The institution has accepted the veteran or he or she is eligible to continue his or her training;
(3) The veteran has notified the institution of his or her intention to attend or to reenroll;
(4) The number of semester or clock hours the veteran will pursue; and
(5) The beginning and ending dates of the enrollment period.
(e) Time of advance payment. VA will authorize advance payment only:
(1) At the beginning of an ordinary school year; or
(2) At the beginning of any other enrollment period which begins after a break in enrollment of one full calendar month or longer.
(f) Other payments. (1) VA will make all payments other than advance payments at the end of the month for the veteran’s training during that month.
(2) VA may withhold final payment until:
(i) VA receives certification that the veteran has completed his or her course; and
(ii) VA makes all necessary adjustments in the veteran’s award resulting from that certification.
(g) Payments for courses which are repeated. VA may pay subsistence allowance to a veteran who repeats a course under conditions described in § 21.132.
§ 21.334 Election of payment at the Chapter 30 rate.
(a) Election. When the veteran elects payment of an allowance at the chapter 30 rate, the effective dates for commencement, reduction and termination of the allowance shall be in accordance with §§ 21.7130 through 21.7135 and § 21.7050 under chapter 30.
(b) Election of payment at the Chapter 30 rate subsequent to induction into a rehabilitation program. Election of payment at the Chapter 30 rate subsequent to induction into training is permissible under provisions of § 21.264 (a) and (b). The effective date of the election is the latest of the following dates:
(1) The commencing date determined under § 21.7131 in the case of a veteran who has elected payment at the chapter 30 rate; or
(2) The day following the end of the period for which VA paid tuition, fees or other program charges under this Chapter.
(c) Reelection of subsistence allowance subsequent to induction. If a veteran reelects subsistence allowance under provisions of § 21.264(b) of this part, the effective date of change is earliest of the following:
(1) The date following completion of the term, semester, quarter, or other period of instruction in which the veteran is currently enrolled;
(2) The veteran’s Chapter 30 delimiting date;
(3) The day after exhaustion of Chapter 30 entitlement; or
(4) The day following the date of a VA determination that failure to approve reelection would prevent the veteran from continuing the rehabilitation program.
(d) Election or reelection during leave or between periods of instruction – (1) Payment at the Chapter 30 rate. If an otherwise eligible veteran elects payment at the Chapter 30 rate during a period between periods of instruction, the effective date of the election shall be the first day of the next period of instruction.
(2) Subsistence allowance. If an otherwise eligible veteran reelects subsistence allowance during leave or between periods of instruction following election of payment at the Chapter 30 rate, the effective date of the change will be the date of the reelection or the beginning of the next period of training, whichever is to the veteran’s benefit.
(e) Effect of Chapter 34 program termination. (1) Since Chapter 34 benefits are not payable beyond December 31, 1989, any previous election of benefits at that rate is terminated as of that date;
(2) A veteran entitled to chapter 30 benefits based on his or her chapter 34 eligibility as of December 31, 1989, and whose election of chapter 34 rates terminated as of the date under paragraph (e)(1) of this section must, if the individual desires payment at the chapter 30 rate, elect such payment.
Leaves of Absence
§ 21.340 Introduction.
(a) General. VA may approve leaves of absence under certain conditions. During approved leaves of absence, a veteran in receipt of subsistence allowance shall be considered to be pursuing a rehabilitation program. Leave may be authorized for a veteran during a period of:
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; or
(3) Independent living services.
(b) Election of subsistence allowance. If a veteran elects to receive subsistence allowance and payment of rehabilitation services by VA, he or she may be authorized leave of absence under §§ 21.342 through 21.350.
(c) Election of benefits at the chapter 30 rate. If a veteran elects to receive a subsistence allowance paid at the chapter 30 rate, the effect of absences is determined under §§ 21.7139 and 21.7154.
§ 21.342 Leave accounting policy.
(a) Amount of leave. A veteran pursuing one of the programs listed in § 21.340(a) may be authorized up to 30 days of leave by the case manager during a twelve-month period. The beginning date of the first twelve-month period is the commencing date of the original award, and the ending date is twelve months from the beginning date, with subsequent twelve-month periods running consecutively thereafter.
(b) Additional leave under exceptional circumstances. A veteran in a program may be authorized up to 15 additional days of leave during the twelve-month period by the case manager under exceptional circumstances, such as extended illness or family problems.
(c) Absence. For the purpose of determining when a leave of absence may be authorized, a veteran who elects subsistence allowance shall be considered absent during any period in which he or she is:
(1) Not in attendance under the rules and regulations of the educational institution, rehabilitation center, or sheltered workshop;
(2) Not considered at work under the rules of the training establishment; or
(3) Not present at a scheduled period of individual instruction.
(d) System of records. An educational institution, training establishment, rehabilitation center, or other facility or individual providing training and rehabilitation services under Chapter 31 may utilize the same system of records to determine absence as the one used for similarly circumstanced nonveterans.
(e) Change in rate of pursuit. The amount of approved leave is not affected by the veteran’s rate of pursuit of a rehabilitation program.
(f) Charging leave. VA shall charge 1 day of leave for each day or part of a day of absence from pursuit of a rehabilitation program.
(g) Limitation on carrying leave over to another period. The veteran may not carry over unused days of leave from one twelve-month period to another.
§ 21.344 Facility offering training or rehabilitation services.
(a) Approval of leaves of absence required. Leaves of absence normally must be approved in advance by the case manager when the facility offering training or rehabilitation services arranges for the leave. The approval of the case manager is required:
(1) During periods in a rehabilitation program identified in § 21.342(c); or
(2) A period of hospitalization at VA expense during one of the periods identified in § 21.342(c).
(b) Responsibility of the veteran in obtaining leave. VA will not authorize leave without a verbal or written request by the veteran, and the approval of the facility.
(c) Conditions permitting approval of leaves of absence. (1) The case manager may approve leaves of absence up to a total of 30 days during a twelve-month period if the facility certifies that the use of the leave does not interfere materially with the veteran’s progress;
(2) An additional period of up to 15 days of leave in the same twelve-month period under exceptional circumstances may be approved by the case manager if failure to approve leave will:
(i) Result in personal hardship, or
(ii) Adversely affect the veteran’s ability to continue in his or her rehabilitation program.
§ 21.346 Facility temporarily not offering training or rehabilitation services.
(a) Approval of leave of absence not required. A veteran may receive subsistence allowance, during a period when the facility temporarily is not offering services, without the veteran’s being charged with leave when:
(1) The facility is closed temporarily under an executive order of the President or due to an emergency situation;
(2) The veteran is pursuing on-job training and he or she receives holidays established by Federal or State law;
(3) The veteran is pursuing farm cooperative training and is required in the ordinary day to day conduct of farm business to be absent:
(i) From the farm; or
(ii) From that part of a farm cooperative course which is given at the educational institution.
(4) The veteran is pursuing a standard college degree; and
(i) There is an interval between consecutive semesters, terms, quarters or periods of instruction within a certified enrollment period which does not exceed a full calendar month;
(ii) There is an interval, which does not exceed a full calendar month between semesters, terms or quarters when the educational institution only certifies enrollment on a semester, term, or quarter basis; or
(iii) There is an interval, which does not exceed 30 days, when the veteran, as part of his or her approved program of vocational rehabilitation, transfers from one educational institution to another for the purpose of enrolling in and pursuing a similar program at the second institution;
(5) The veteran is pursuing a non-college-degree course and there is a period of up to 5 days per twelve-month period during which the school offering non-college-degree courses is not operating, because instructors are attending professional meetings.
(b) Case manager responsibility. The case manager may disapprove leave under paragraph (a)(4) of this section if:
(1) Approval would result in or lead to use of more than 48 months of entitlement under Chapter 31, alone; or
(2) Approval would require extension of the scheduled completion date of the veteran’s program.
(c) Approval of leaves of absence required. A veteran, who wishes to receive subsistence allowance while the facility temporarily is not offering training under conditions other than those identified in paragraph (a) of this section, must seek an approved leave of absence and be charged leave.
§ 21.348 Leave following completion of a period of training or rehabilitation services.
(a) Leave following completion of training or rehabilitation services. Leave may not be approved following completion of a period of rehabilitation services described in § 21.340(a).
(b) Postponement of the date of completion of a period of rehabilitation services prohibited. The date of completion of the veteran’s program may not be extended for the purpose of allowing the veteran to use leave.
A veteran who is unable to obtain an authorized leave of absence in advance may seek to have the unauthorized absence excused.
(a) Excusing unauthorized absences. VA may excuse an unauthorized absence and make proper charges against the veteran’s leave when:
(1) The veteran has absented himself or herself when advance approval from VA is impracticable; and
(2) Conditions for approval of leave are otherwise met.
(b) Unexcused, unauthorized absences. When an unauthorized absence is not satisfactorily explained, VA will take necessary action, including recoupment of subsistence allowance for that period of absence.
Conduct and Cooperation
§ 21.362 Satisfactory conduct and cooperation.
(a) General. The successful development and implementation of a program of rehabilitation services require the full and effective participation of the veteran in the rehabilitation process.
(1) The veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitation services under Chapter 31;
(2) The staff is responsible for insuring satisfactory conduct and cooperation on the veteran’s part; and
(3) VA staff shall take required action when the veteran’s conduct and cooperation are not satisfactory. (See § 21.364)
(b) VA responsibility. VA shall make a reasonable effort to inform the veteran and assure his or her understanding of:
(1) The services and assistance which may be provided under Chapter 31 to help the veteran maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process, especially counseling services;
(2) Other services which Veteran Readiness and Employment (VR&E) staff can assist the veteran in securing through non-VA programs; and
(3) The specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation.
(c) Veteran’s responsibility. A veteran requesting or being provided services under Chapter 31 must:
(1) Cooperate with VA staff in carrying out the initial evaluation and developing a rehabilitation plan;
(2) Arrange a schedule which allows him or her to devote the time needed to attain the goals of the rehabilitation plan;
(3) Seek the assistance of VA staff, as necessary, to resolve problems which affect attainment of the goals of the rehabilitation plan;
(4) Conform to procedures established by VA governing pursuit of a rehabilitation plan including:
(i) Enrollment and reenrollment in a course;
(ii) Changing the rate at which a course is pursued;
(iii) Requesting a leave of absence;
(iv) Requesting medical care and treatment;
(v) Securing supplies; and
(vi) Other applicable procedures.
(5) Conform to the rules and regulations of the training or rehabilitation facility at which services are being provided.
(d) Responsibility for determining satisfactory conduct and cooperation. VR&E staff with case management responsibility in the veteran’s case will:
(1) Monitor the veteran’s conduct and cooperation as necessary to assure consistency with provisions of paragraph (c) of this section.
(2) Provide assistance which may be authorized under Chapter 31, or for which arrangements may be made under other programs to enable the veteran to maintain satisfactory conduct and cooperation.
§ 21.364 Unsatisfactory conduct and cooperation.
(a) General. If VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are found not reasonably likely to be effective, discontinue services and assistance to the veteran, unless the case manager determines that mitigating circumstances exist. In any case in which such services and assistance have been discontinued, VA may reinstitute such services and assistance only if the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) determines that:
(1) The unsatisfactory conduct or cooperation of such veteran will not be likely to recur; and
(2) The rehabilitation program which the veteran proposes to pursue (whether the same or revised) is suitable to such veteran’s abilities, aptitudes, and interests.
(b) Unsatisfactory conduct or cooperation exists. When the case manager determines that the veteran’s conduct and/or cooperation are not in conformity with provisions of § 21.362(c), the case manager will:
(1) Discuss the situation with the veteran;
(2) Arrange for services, particularly counseling services, which may assist in resolving the problems which led to the veteran’s unsatisfactory conduct or cooperation;
(3) Interrupt the program to allow for more intense efforts, if the unsatisfactory conduct and cooperation persist. If a reasonable effort to remedy the situation is unsuccessful during the period in which the program is interrupted, the veteran’s case will be discontinued and assigned to “discontinued” status unless mitigating circumstances are found. When mitigating circumstances exist the case may be continued in “interrupted” status until VA staff determines the veteran may be reentered into the same or a different program because the veteran’s conduct and cooperation will be satisfactory, or if a plan has been developed, to enable the veteran to reenter and try to maintain satisfactory conduct and cooperation. Mitigating circumstances include:
(i) The effects of the veteran’s service and nonservice-connected condition;
(ii) Family or financial problems which have led the veteran to unsatisfactory conduct or cooperation; or
(iii) Other circumstances beyond the veteran’s control.
Interregional and Intraregional Travel of Veterans
§ 21.370 Intraregional travel at government expense.
(a) Introduction. VA may authorize transportation expenses for intraregional travel to a veteran in a rehabilitation program or a program of employment services for the purposes presented in paragraph (b) of this section. When approved for purposes stated in paragraph (b) of this section, authorization of travel is limited to the veteran’s transportation, and does not include transportation for the veteran’s dependents, or for moving personal effects.
(b) Necessary condition for intraregional travel at government expense. VA may authorize a veteran to travel at government expense within the regional territory of the VA field station of jurisdiction when:
(1) VA determines that the travel is necessary in the discharge of the government’s obligation to the veteran; and
(2) The veteran is instructed to travel for any of the following reasons:
(i) To report to the chosen school or training facility for the purpose of starting training;
(ii) To report to a prospective employer-trainer for an interview prior to induction into training, when there is definite assurance in advance of approving the travel that, upon interview, the employer will start the veteran in training, if the employer finds the veteran acceptable, or
(iii) To report to the chosen school for a personal interview prior to induction into training when:
(A) The school requires the interview as a condition of admission,
(B) There is assurance before the travel is approved that the veteran’s records (school, counseling, etc.) show he or she meets all basic requirements for induction under § 21.282; and
(C) The veteran submits to the school a transcript of his or her high school credits and a transcript from any school he or she attended following high school.
(iv) To report to a rehabilitation facility or sheltered workshop;
(v) To return to his or her home from the training or rehabilitation facility when:
(A) Services are not available for a period of 30 days or more (including summer vacation periods), and
(B) Travel from his or her home to the training or rehabilitation facility was at government expense;
(vi) To return to the training or rehabilitation facility from his or her home, when:
(A) The purpose of the travel is to continue the rehabilitation program, and
(B) Travel from the training or rehabilitation facility to the veteran’s home was at government expense;
(vii) To return to the point from which he or she was transported at government expense, upon being placed in “discontinued” or “interrupted” status for any reason, except abandonment of training by the veteran without good reason;
(viii) To report to a place of prearranged satisfactory employment upon completion of vocational rehabilitation for the purpose of beginning work;
(ix) To return to his or her home from the place of training following rehabilitation to the point of employability, when suitable employment is not available;
(x) To return from the place of training to the veteran’s prior location, when VA could have approved travel to the place of training at government expense, but did not issue the necessary travel authorization; and
(xi) To report to a place to take a scheduled examination required to practice the trade or profession for which the veteran has been trained. This travel shall be limited to points within the state in which the veteran has pursued his or her training or, if the veteran returned to the state from which he or she was sent to pursue training, he or she may be sent at government expense to a place within that state to take the examination. If there is more than one place within the state at which the veteran may take the examination, travel shall be limited to the nearest place.
(c) Approval of intraregional transfer. Intraregional travel must be approved by the case manager.
§ 21.372 Interregional transfer at government expense.
(a) Introduction. A veteran may need to transfer from the jurisdiction of one VA facility to another in order to accomplish rehabilitation. This section states the conditions which will permit the transfer to be made at government expense. Authorization of travel is limited to the veteran’s transportation, and does not include transportation for the veteran’s dependents or for moving personal effects.
(b) Conditions which permit interregional transfers at government expense. A veteran may be provided travel at government expense when it has been determined that such travel is necessary to accomplish rehabilitation. VA will authorize an interregional transfer at government expense only to allow the veteran:
(1) To enter training in the nearest satisfactory facility if:
(i) The nearest satisfactory facility is within the jurisdiction of another VA facility; or
(ii) There are no satisfactory facilities within the jurisdiction of the facility in which the veteran resides.
(2) To enter training in the state in which the veteran has long-standing family and social ties, and in which he or she plans to live following rehabilitation;
(3) To report to an employer-trainer when all necessary steps have been taken to establish an on-job training program;
(4) To report to rehabilitation facility or sheltered workshop;
(5) To return to his or her home from the place of training when:
(i) Training is not available for a period of 30 days or more (including summer vacation periods), and
(ii) Travel from his or her home to the place of training or rehabilitation services was at government expense;
(6) To return to the place of training or rehabilitation services from his or her home, when;
(i) The purpose of the travel is to continue training or rehabilitation services; and
(ii) Travel from the place of training or rehabilitation services to the veteran’s home was at government expense;
(7) To return to the point from which he or she was transferred at government expense, upon being assigned to “discontinued” or “interrupted” status, for any reason, except abandonment of training by the veteran without good reason;
(8) To report to a place of prearranged satisfactory employment or for a prearranged employment interview following completion of his or her program of vocational rehabilitation, when:
(i) There is no satisfactory opportunity for employment in the veteran’s occupation within the jurisdiction of the facility which has jurisdiction over his or her residence, and
(ii) The veteran has a serious employment handicap.
(9) To return to his or her home, from which he or she was transferred at government expense to pursue training, when, upon completion of his or her course, satisfactory employment is not available;
(10) To return to the location from which he or she traveled without authorization because VA did not issue the necessary travel authorization on a timely basis.
(c) Approval of interregional transfer. Interregional travel must be approved by the case manager.
§ 21.374 Authorization for travel of attendants.
(a) Travel for attendants. The services of an attendant to accompany a veteran while traveling for rehabilitation purposes may be provided when such services are necessitated by the severity of the veteran’s disability. Attendants may only be used to enable a veteran to attend appointments for initial evaluation, counseling, or intraregional or interregional travel at government expense under § 21.370 and § 21.372.
(b) Attendants not employed by the Federal government. (1) VA may authorize persons not in regular civilian employment of the Federal government to act as attendants. Payment of travel expenses for attendants will be authorized on the same basis as for the veteran the attendant is accompanying. VA:
(i) Will furnish the attendant with common-carrier transportation, meal and lodging expenses; or
(ii) Will grant the attendant a mileage allowance in lieu of furnishing the assistance cited in paragraph (b)(1)(i) of this section.
(2) VA will not pay the attendant a fee if he or she is a relative of the veteran. A relative, for this purpose, is a person who by blood or marriage is the veteran’s
(i) Spouse,
(ii) Parent,
(iii) Child,
(iv) Brother,
(v) Sister,
(vi) Uncle,
(vii) Aunt,
(viii) Niece, or
(ix) Nephew.
(c) Attendant employed by the Federal government. (1) VA may authorize a person in the regular civilian employment of the Federal government to act as an attendant. When assigned, the attendant:
(i) Will be entitled to transportation and expenses, or
(ii) May be allowed per diem in place of subsistence in accordance with the provisions of the Federal Travel Regulations (5 U.S.C. Chapter 57).
(2) VA will pay no fee to civilian employees of the Federal government who act as attendants.
§ 21.376 Travel expenses for initial evaluation and counseling.
When VA asks a disabled veteran to report to a designated place for an initial evaluation, reevaluation or counseling (including personal or vocational adjustment counseling), the veteran will travel to and from the place of evaluation and counseling at government expense. When a veteran, because of a severe disability, requires the services of an attendant while traveling, VA will authorize payment of travel expenses for the attendant under the provisions of § 21.374.
Personnel Training and Development
§ 21.380 Establishment of qualifications for personnel providing assistance under Chapter 31.
(a) General. Notwithstanding any other provision of law or regulation, VA shall establish qualification standards for VBA personnel providing evaluation, rehabilitation, and case management services to eligible veterans under chapter 31, including:
(1) Counseling Psychologists (CP) or Vocational Rehabilitation Counselors (VRC);
(2) Vocational rehabilitation specialists; and
(3) Other staff providing professional and technical assistance.
(b) Rehabilitation Act of 1973. VA shall consider qualification standards established for comparable personnel under the Rehabilitation Act of 1973, when setting agency standards.
§ 21.382 Training and staff development for personnel providing assistance under Chapter 31.
(a) General. VA shall provide a program of ongoing professional training and development for staff of the Veteran Readiness and Employment (VR&E) Service engaged in providing rehabilitation services under chapter 31. The objective of such training shall be to insure that rehabilitation services for disabled veterans are provided in accordance with the most advanced knowledge, methods, and techniques available for the rehabilitation of disabled persons. The areas in which training and development services may be provided to enhance staff skills include:
(1) Evaluation and assessment:
(2) Medical aspects of disability;
(3) Psychological aspects of disability;
(4) Counseling theory and techniques;
(5) Personal and vocational adjustment;
(6) Occupational information;
(7) Placement processes and job development;
(8) Special considerations in rehabilitation of the seriously disabled;
(9) Independent living services;
(10) Resources for training and rehabilitation; and
(11) Utilizing research findings and professional publications.
(b) Training and development resources. For the purpose of carrying out the provisions of paragraph (a) of this section VA may:
(1) Employ the services of consultants;
(2) Make grants to and contract with public and private agencies, including institutions of higher learning, to conduct workshop and training activities;
(3) Authorize individual training at institutions of higher learning and other appropriate facilities; and
(4) Utilize chapter 41 of title 5, U.S.C., and related instructions to provide training and staff development activities on a group and individual basis.
(c) Interagency coordination. VA shall coordinate with the Commissioner of the Rehabilitation Services Administration and the Assistant Secretary for Veterans’ Employment in planning and carrying out personnel training in areas of mutual programmatic concern.
Rehabilitation Research and Special Projects
§ 21.390 Rehabilitation research and special projects.
(a) General. VA shall carry out an ongoing program of activities for the purpose of advancing the knowledge, methods, techniques, and resources available for use in rehabilitation programs for veterans. For this purpose, VA may conduct research and development, provide support for research and development, or both conduct and provide support for the development and conduct of:
(1) Studies and research concerning the psychological, educational, social, vocational, industrial, and economic aspects of rehabilitation; and
(2) Projects which are designed to increase the resources and potential for accomplishing the rehabilitation of disabled veterans.
(b) Grants. VA may make grants to, or contract with, public on nonprofit agencies, including institutions of higher learning, to carry out the provisions of paragraph (a) of this section.
(c) Research by Veteran Readiness and Employment (VR&E) staff members. VA will encourage research by VR&E staff members. This research will address problems affecting service delivery, initiation and continuation in rehabilitation programs, and other areas directly affecting the quality of VR&E services to veterans.
(d) Interagency coordination. VA shall cooperate with the Commissioner of the Rehabilitation Services Administration and the Director of the National Institute of Handicapped Research in the Department of Education, the Assistant Secretary for Veterans’ Employment in the Department of Labor, and the Secretary of Health and Human Services regarding rehabilitation studies, research, and special projects of mutual programmatic concern.
Veterans’ Advisory Committee on Rehabilitation
§ 21.400 Veterans’ Advisory Committee on Rehabilitation.
(a) General. The Secretary shall appoint an advisory committee to be known as the Veterans’ Advisory Committee on Rehabilitation.
(b) Purpose. The purposes of the Veterans’ Advisory Committee on Rehabilitation, hereafter referred to as the committee, are to:
(1) Assess the rehabilitation needs of service and nonservice-disabled veterans; and
(2) Review the programs and activities of VA designed to meet such needs;
(c) Members. The committee shall include:
(1) Members of the general public;
(2) Appropriate representation of veterans with service-connected disabilities; and
(3) Persons who have distinguished themselves in the public and private sectors in the fields of rehabilitation, and employment and training programs.
(d) Members terms. The Secretary shall appoint members of the committee for three-year terms. Members may be reappointed for additional three-year terms.
(e) Chairperson. The Secretary will designate one of the members of the committee to chair the committee.
(f) Ex-officio members. The committee shall also include ex-officio members named by the following agencies. The ex-officio members shall include one representative from:
(1) The Veterans Health Services and Research Administration;
(2) The Veterans Benefits Administration;
(3) The Rehabilitation Services Administration and one from the National Institute for Handicapped Research of the Department of Education; and
(4) The Assistant Secretary of Labor for Veterans’ Employment of the Department of Labor.
§ 21.402 Responsibilities of the Veterans’ Advisory Committee on Rehabilitation.
(a) Consultation with the Secretary. The Secretary shall regularly, but not less than twice yearly, consult with and seek the advice of the committee with respect to the administration of veterans’ rehabilitation programs authorized under Title 38, United States Code.
(b) Submission of an annual report. The committee shall:
(1) Submit to the Secretary an annual report on the rehabilitation programs and activities of the VA; and
(2) Submit such other reports and recommendations to the Secretary as the committee determines appropriate.
(c) Contents of the committee’s annual report. The committee’s annual report shall include:
(1) An assessment of the rehabilitation needs of veterans; and
(2) A review of the programs and activities of VA designed to meet needs identified in paragraph (c)(1) of this section.
(d) Secretary’s annual report. The findings of the committee shall be incorporated in the Secretary’s annual report submitted to the Congress under 38 U.S.C. 529. In addition the Secretary shall submit, together with this annual report, a copy of all reports and recommendations of the committee submitted to the Secretary since the previous annual report was submitted to the Congress.
Additional Administrative Consideration
The Secretary delegates authority to the Under Secretary for Benefits to make findings and decisions under 38 U.S.C. chapter 31 and regulations, precedents, and instructions that affect vocational rehabilitation services for disabled veterans. The Under Secretary for Benefits may further delegate this authority to supervisory and non-supervisory Veteran Readiness and Employment (VR&E) staff members.
§ 21.412 Finality of decisions.
(a) Facility of original jurisdiction. The decision of a VA facility in a given veteran’s case:
(1) Will be final and binding upon all field stations of VA as to conclusions based on evidence on file at that time; and
(2) Will not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §§ 21.410 and 21.414.
(b) Adjudicative determinations. Current determinations of line of duty, character of discharge, relationship, and other pertinent elements affecting eligibility for training and rehabilitation services or payment of subsistence allowance under Chapter 31, made by an adjudicative activity by application of the same criteria and based on the same facts, are binding upon all other adjudicative activities in the absence of clear and unmistakable error.
§ 21.414 Revision of decision.
The revision of a decision on which an action is based is subject to the following regulations:
(a) Clear and unmistakable error, § 3.105(a);
(b) Difference of opinion, § 3.105(b);
(c) Character of discharge, § 3.105(c);
(d) Severance of service-connection, § 3.105(d);
(e) Reduction to less than compensable evaluation, § 3.105(e); (See §§ 21.48, 21.322, and 21.324)
(f) Review of decisions, § 21.416.
§ 21.416 Review of decisions.
(a) Applicability. This section applies where notice of a decision under this subpart or subpart M of this part was provided to a claimant or his/her representative on or after the effective date of the modernized review system as provided in § 19.2(a) of this chapter, or where a claimant has elected review of a legacy claim under the modernized review system as provided in § 3.2400(c) of this chapter.
(b) Reviews available. Within one year from the date on which VA issues notice of a decision on an issue contained within a claim, a claimant may elect one of the following administrative review options:
(1) Supplemental Claim. The nature of this review will accord with § 3.2501 of this chapter, except that a complete application in writing on a form prescribed by the Secretary will not be required and a hearing will not be provided.
(2) Appeal to the Board of Veterans’ Appeals. See 38 CFR part 20.
(3) Higher-level Review. The nature of this review will accord with § 3.2601.
(c) Notice requirements. Notice of a decision made under paragraph (b)(1) or (3) of this section will include all of the elements described in § 21.420(b).
Informing the Veteran
§ 21.420 Informing the veteran.
(a) General. VA will inform a veteran in writing of findings affecting receipt of benefits and services under Chapter 31. This includes veterans:
(1) Requesting benefits and services; or
(2) In receipt of benefits and services.
(b) Notification: Each notification should include the following:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the Secretary.
(3) A summary of the applicable laws and regulations relevant to the decision.
(4) Identification of findings favorable to the veteran.
(5) In the case of a denial of a claim, identification of elements not satisfied leading to the denial.
(6) An explanation of how to obtain or access evidence used in making the decision.
(7) A summary of the applicable review options available for the veteran to seek further review of the decision.
(c) Adverse action. An adverse action is one, other than an interim action such as a suspension of benefits pending development, which:
(1) Denies Chapter 31 benefits, when such benefits have been requested;
(2) Reduces or otherwise diminishes benefits being received by the veteran; or
(3) Terminates receipt of benefits for reasons other than scheduled interruptions which are a part of the veteran’s plan.
(d) Prior notification of adverse action. VA shall give the veteran a period of at least 30 days to review, prior to its promulgation, an adverse action other than one which arises as a consequence of a change in training time or other such alteration in circumstances. During that period, the veteran shall be given the opportunity to:
(1) Meet informally with a representative of VA;
(2) Review the basis for VA decision, including any relevant written documents or material; and
(3) Submit to VA any material which he or she may have relevant to the decision.
(e) Favorable findings. Any finding favorable to the veteran is binding on all subsequent agency of original jurisdiction and Board of Veterans’ Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding.
§ 21.422 Reduction in subsistence allowance following the loss of a dependent.
(a) Notice of reduction required when a veteran loses a dependent. (1) Except as provided in paragraph (a)(2) of this section, VA will not reduce an award of subsistence allowance following the veteran’s loss of a dependent unless:
(i) VA has notified the veteran of the adverse action, and
(ii) VA has provided the veteran with a period of 60 days in which to submit evidence for the purpose of showing that subsistence allowance should not be reduced.
(2) When the reduction is based solely on written, factual, unambiguous information as to dependency provided by the veteran or his or her fiduciary with knowledge or notice that the information would be used to determine the monthly rate of subsistence allowance;
(i) VA is not required to send a pre-reduction notice as stated in paragraph (a)(1) of this section, but;
(ii) VA will send notice contemporaneous with the reduction in subsistence allowance.
(b) Pre-reduction notice. Where a reduction in subsistence allowance is proposed by reason of information concerning dependency received from a source other than the veteran, VA will:
(1) Prepared a proposal for the reduction of subsistence allowance, setting forth material facts and reasons;
(2) Notify the veteran at his or her latest address of record of the proposed action;
(3) Furnish detailed reasons for the proposed reduction;
(4) Inform the veteran that he or she has an opportunity for a predetermination hearing, provided that VA receives a request for such a hearing within 30 days from the date of the notice; and
(5) Give the veteran 60 days for the presentation of additional evidence to show that the subsistence allowance should be continued at its present level.
(c) Predetermination hearing. (1) If VA receives a timely request for a predetermination hearing as indicated in paragraph (b)(4) of this section:
(i) VA will notify the veteran in writing of the date, time and place for the hearing; and
(ii) Payments of subsistence allowance will continue at the previously established level pending a final determination concerning the proposed reduction.
(2) The hearing will be conducted by a VA employee who:
(i) Did not participate in the preparation of the proposal to reduce the veteran’s subsistence allowance, and
(ii) Will bear the decision-making responsibility.
(d) Final action. VA will take final action following the predetermination procedures specified in paragraph (c) of this section.
(1) If a predetermination hearing was not requested or if the veteran failed to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record at the expiration of 60 days.
(2) If a predetermination hearing was conducted, VA will base final action upon:
(i) Evidence presented at the hearing;
(ii) Evidence contained in the claims file at the time of the hearing; and
(iii) Any additional evidence obtained following the hearing pursuant to necessary development.
(3) Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the veteran setting forth the reasons for the decision, and the evidence upon which it is based. The veteran will be informed of his or her appellate rights and right of representation. (For information concerning the conduct of the hearing see § 3.103 (c) and (d) of this chapter).
(4) When a reduction of subsistence allowance is found to be warranted following consideration of any additional evidence submitted, the effective date of the reduction or discontinuance shall be as specified under the provisions of § 21.324 of this part.
Accountability
(a) General. VA shall maintain policies and procedures which provide accountability in the authorization and payment of program costs for training and rehabilitation services. The procedures established under this section are applicable to all program costs except subsistence allowance (or the optional allowance at Chapter 34 rates). Policies and procedures governing payment of subsistence allowance are governed by §§ 21.260 through 21.276, and §§ 21.320 through 21.334.
(b) Determining necessary costs for training and rehabilitation services. The estimates of program costs during a calendar year or lesser period shall be based upon the services necessary to carry out the veteran’s rehabilitation plan during that period (§§ 21.80 through 21.96). The estimates will be developed by the VBA case manager. If additional approval is required, the VBA case manager shall secure such additional approval prior to authorization of services.
(c) Veteran Readiness and Employment (VR&E) Officer’s review of program costs. The VR&E Officer will review the program costs for the services in paragraphs (c)(1) through (3) of this section if the case manager’s program cost estimate for a calendar year exceeds $25,000. The VR&E Officer may not delegate this responsibility. The case manager will neither sign a rehabilitation plan nor authorize expenditures before the VR&E Officer approves the program costs. The services subject to this review are:
(1) Providing supplies to help establish a small business;
(2) A period of extended evaluation; or
(3) A program of independent living services.
See § 21.156. Other incidental goods and services. § 21.258. Special assistance for veterans in self-employment.
Veterans Employment Pay for Success Grant Program
§ 21.440 Purpose and scope.
Sections 21.440 through 21.449 establish and implement the Veterans Employment Pay for Success (VEPFS) grant program, which provides grants to eligible entities to fund outcomes payments for projects that are successful in accomplishing employment rehabilitation for Veterans with service-connected disabilities. These sections apply only to the administration of the VEPFS grant program, unless specifically provided otherwise.
§ 21.441 Definitions.
For the purposes of §§ 21.440 through 21.449, and any Notices of Funding Availability (NOFA) issued pursuant to §§ 21.440 through 21.449, the following definitions apply:
Applicant is an eligible entity that submits an application for a VEPFS grant announced in a NOFA.
Eligible entity is a public or nonprofit agency, to include institutions of higher learning.
Employment outcome is the employment or earnings of a participant in an intervention group or control or comparison group during or after the service period. Improving employment outcomes means creating positive impact in terms of these outcomes, where the results for individuals that receive the intervention are better than the results for a valid control or comparison group that did not receive the intervention.
Intervention is a service or technology that is provided to individuals and is intended to achieve certain results.
Outcomes payments are funds that are paid to an investor or service provider and that are released only for the achievement of outcomes, as compared to those of a control or comparison group, that meet target levels that have been agreed to in advance of the provision of intervention (i.e., if positive impact has been created by the intervention in terms of these outcomes). When investors have provided the upfront capital for the project, these payments generally cover repayment of the principal investment and provide a modest return on investment for any associated risks of paying for the intervention upfront.
Pay for Success (PFS) agreement is a multi-party agreement to deliver an innovative or evidence-based intervention intended to improve outcomes for a targeted population signed by the entities that constitute the project partnership.
Project partnership is a collaboration among entities that negotiate one or more agreements and execute a project to improve employment outcomes for Veterans with service-connected disabilities. The entities that may be involved in a project partnership include:
(1)(i) Outcomes payor. Entity that receives a VEPFS grant and pays for outcomes of services that meet target levels that have been agreed to in advance of the provision of the intervention.
(ii) Project coordinator. Facilitates, coordinates, and executes a PFS agreement to improve employment outcomes for Veterans with service-connected disabilities. With respect to other PFS projects, project coordinators are sometimes referred to as intermediaries.
(iii) Evaluator. Independent entity that determines the impact of the services provided, including whether the services have resulted in employment outcomes that meet target levels that have been agreed to in advance of the provision of the intervention.
(iv) Investor. Person or entity that provides upfront capital to cover costs of providing services/delivering an intervention and other associated costs before a determination has been made as to whether certain employment outcomes have been achieved at pre-set target levels.
(v) Service provider. Entity that delivers an intervention designed to achieve improved employment outcomes for Veterans with service-connected disabilities.
(2) A full project partnership is a project partnership that includes an outcomes payor, evaluator, investor (if the PFS agreement involves PFS financing), and service provider. A partial project partnership includes an outcomes payor and at least one of the following: Evaluator, investor (if the PFS agreement involves PFS financing), or service provider.
Recipient is the entity that receives a VEPFS grant under §§ 21.440 through 21.449. The recipient is also the outcomes payor.
Secretary refers to the Secretary of Veterans Affairs.
Service-connected disability is a disability that is “service-connected” as defined in 38 CFR 3.1.
Social finance strategy is a method for securing financial resources using an investment approach that focuses on achieving positive social and/or environmental impact with some form of financial return.
Strong evidence constitutes results from previous studies, the designs of which can support causal conclusions (i.e., studies with high internal validity), that include enough of the range of participants and settings to support scaling up to the state, regional, or national level (i.e., studies with high external validity).
Veteran has the same definition as provided in 38 CFR 3.1.
Veterans Employment Pay for Success (VEPFS) agreement is a PFS agreement to deliver an innovative, evidence-based intervention intended to improve Veteran employment outcomes.
Veterans Employment Pay for Success (VEPFS) project is a project with a strategy for delivering a service with a goal to significantly improve a current condition with respect to unemployment of a target Veteran population and sufficient evidence to support the theory behind the project using a financial model that includes cost savings by funding the project only if it is successful.
Work-plan is a document that articulates tasks and milestones with regard to a particular project.
§ 21.442 VEPFS grants – general.
(a) VA may award a VEPFS grant only to an eligible entity selected under § 21.446.
(b) The amount of Federal funding available to be awarded in a VEPFS grant will be specified in the NOFA.
(c) A VEPFS grant will be awarded for a minimum and maximum number of years that is specified in the VEPFS grant agreement, beginning on the date on which the VEPFS grant is awarded, with the availability of no-cost extensions.
(d) As a condition of receiving a VEPFS grant, a recipient will be required to provide matching funds from non-Federal sources equal to or greater than the amount of Federal grant funds awarded, to be combined with the amount of Federal grant funds awarded and used as specified in § 21.443.
(e) A VEPFS grant award is not a Veterans’ benefit. Decisions of the Secretary are final and not subject to the same appeal rights as decisions related to Veterans’ benefits.
§ 21.443 Permissible uses of VEPFS grant funds.
(a) VEPFS grant funds may be used only to fund outcomes payments if an intervention achieves outcomes at a pre-set target level that has been agreed to in a PFS agreement before service delivery begins for a PFS project with a goal to improve employment outcomes for Veterans with service-connected disabilities.
(b) To pay for the indirect costs of administering a grant, regardless of whether an intervention achieves outcomes at a pre-set target level, a recipient may:
(1) Use a Federally approved indirect cost rate (a rate already negotiated with the Federal Government);
(2) Use a 10% de minimis rate of modified total direct costs;
(3) Negotiate an indirect cost rate for the first time; or
(4) Claim certain costs directly following 2 CFR 200.413.
§ 21.444 Notice of funding availability.
When funds are available for a VEPFS grant, VA will publish a NOFA in the
(a) The location for obtaining grant applications and the specific forms that will be required;
(b) The date, time, and place for submitting completed grant applications;
(c) The total amount and type of funds available and the maximum amount available to a single applicant;
(d) Information regarding eligibility and the scoring process;
(e) Any timeframes and manner for payments under the grant; and
(f) Other information necessary for the VEPFS grant application process, as determined by VA, including contact information for the VA office that will oversee the VEPFS grant.
§ 21.445 Application.
To apply for a VEPFS grant, eligible entities must submit to VA a complete application package in accordance with the instructions in the NOFA and include the forms specified in the NOFA. Applications will be accepted only through Grants.gov (http://www.grants.gov). A complete grant application package, as further described in the NOFA, includes standard forms specified in the NOFA and the following:
(a) Project description, including a description of the intervention, the Veteran population to be served, and anticipated employment outcomes;
(b) Description of anticipated project partnership(s), including the responsibilities of each of the partner entities, the experience of any involved entities with serving Veteran populations, and other qualifications of the involved entities that may be relevant in carrying out responsibilities of the project partnership. In establishing the project partnership, entities, including the project coordinator, evaluator, and service provider, but excluding investors, must be procured following procurement standards set forth in 2 CFR 200.317 through 200.326.
(c) A work plan, including a budget and timelines;
(d) Description of applicant’s expertise or experience with PFS or other social finance strategies or experience administering programs that serve Veterans with disabilities;
(e) Documentation of applicant’s ability and capacity to administer the project;
(f) Proof of matching funds already secured, ability to secure matching funds, or commitments received; and
(g) Any additional information as deemed appropriate by VA and set forth in the NOFA.
§ 21.446 Scoring and selection.
(a) Scoring. VA will score only complete applications received from eligible entities by the deadline established in the NOFA. VA will score applications using the following criteria:
(1) Project description. Applicant identifies and describes an intervention that is designed to improve employment outcomes for Veterans with service-connected disabilities through a PFS agreement and demonstrates with strong evidence the ability of the intervention to meet objectives. Project description should explain and justify the need for the intervention, and include concept, size and scope of the project, and the Veteran population to be served.
(2) Project partnership. Applicant provides a description of the partnership and the level of partnership (full, partial, or none) attained at the time of application.
(3) Work plan and budget. Applicant provides a work plan that describes in detail the timeline for the tasks outlined in the project description and proposed milestones. Applicant provides a budget that specifies amount of outcome payments and indirect and other relevant costs.
(4) Expertise and capacity. Applicant provides evidence of its past experience with PFS or other social finance strategies or experience administering programs that serve Veterans with disabilities, and of its ability and capacity to successfully administer the project.
(5) Match. Applicant provides evidence of secured cash matching (1:1) funds or of its ability to secure or commitments to receive such funds.
(b) Selection of recipients. All complete applications from eligible entities will be scored using the criteria in paragraph (a) of this section and ranked in order from highest to lowest total score. NOFA announcements may also clarify the selection criteria in paragraph (a). The relative weight (point value) for each selection criterion will be specified in the NOFA. Point values will be assigned according to the criterion’s importance in ensuring the successful development and implementation of a VEPFS project. VA will award any VEPFS grant on the primary basis of scores but will also consider a risk assessment evaluation.
§ 21.447 VEPFS grant agreement.
After an applicant is selected to receive a VEPFS grant in accordance with § 21.446, VA will draft a grant agreement to be executed by VA and the applicant. Upon execution of the VEPFS grant agreement, VA will obligate grant funds to cover the amount of the approved grant, subject to the availability of funding. The VEPFS grant agreement will provide that the recipient agrees, and will ensure that each subcontractor (if applicable) agrees, to:
(a) Operate the program in accordance with the provisions of §§ 21.440 through 21.449, 2 CFR part 200, and the applicant’s VEPFS grant application;
(b) Comply with such other terms and conditions, including recordkeeping and reports for program monitoring and evaluation purposes, as VA may establish in the Terms and Conditions of the grant agreement for purposes of carrying out the VEPFS program in an effective and efficient manner; and
(c) Provide additional information that VA requests with respect to:
(1) Program effectiveness, as defined in the Terms and Conditions of the grant agreement;
(2) Compliance with the Terms and Conditions of the grant agreement; and
(3) Criteria for evaluation, as defined in the Terms and Conditions of the grant agreement.
§ 21.448 Recipient reporting requirements.
(a) Recipients must submit to VA a quarterly report 30 days after the close of each Federal fiscal quarter of the grant period. The report must include the following information:
(1) A detailed record of the time involved and resources expended administering the VEPFS program.
(2) The number of Veterans served, including demographics of this population.
(3) The types of employment assistance provided.
(4) A full accounting of VEPFS grant funds used or unused during the quarter.
(5) A comparison of accomplishments related to the objectives of the award.
(6) An explanation for any goals not met.
(7) An analysis and explanation for any cost overruns.
(b) VA may request additional reports in the Terms and Conditions of the grant agreement if necessary to allow VA to fully and effectively assess program accountability and effectiveness.
§ 21.449 Recovery of funds.
If a recipient fails to comply with any Federal statutes or regulations or the terms and conditions of an award made under §§ 21.440 through 21.449, VA may impose additional conditions as specified in 2 CFR 200.207 or, if non-compliance cannot be remedied, take any appropriate actions specified in 2 CFR part 200 as remedies for non-compliance.
Subpart B – Claims and Applications for Educational Assistance
Claims
§ 21.1029 Definitions.
The following definitions of terms apply to this subpart and subparts C, D, F, G, H, K, L, and P, to the extent that the terms are not otherwise defined in those subparts:
(a) Abandoned claim. A claim is an abandoned claim if:
(1) In connection with a formal claim VA requests that the claimant furnish additional evidence, and the claimant –
(i) Does not furnish that evidence within one year of the date of the request; and
(ii) Does not show good cause why the evidence could not have been submitted within one year of the date of the request; or
(2) In connection with an informal claim, VA requests a formal claim, and –
(i) VA does not receive the formal claim within one year of the date of request; and
(ii) The claimant does not show good cause why he or she could not have filed the formal claim in sufficient time for VA to have received it within one year of the date of the request.
(b) Date of claim. The date of claim is the date on which a valid claim or application for educational assistance is considered to have been filed with VA, for purposes of determining the commencing date of an award of that educational assistance.
(1) If an informal claim is filed and VA receives a formal claim within one year of the date VA requested it, or within such other period of time as provided by § 21.1033, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the informal claim.
(2) If a formal claim is filed other than as described in paragraph (b)(1) of this section, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the formal claim.
(3) If a formal claim itself is abandoned and a new formal or informal claim is filed, the date of claim is as provided in paragraph (b)(1) or (b)(2) of this section, as appropriate.
(c) Educational institution. The term educational institution means:
(1) A vocational school or business school;
(2) A junior college, teachers’ college, college, normal school, professional school, university, or scientific or technical institution;
(3) A public or private elementary school or secondary school;
(4) Any entity, other than an institution of higher learning, that provides training for completion of a State-approved alternative teacher certification program;
(5) An organization or entity offering a licensing or certification test; or
(6) Any private entity that offers, either directly or indirectly under an agreement with another entity, a course or courses to fulfill requirements for the attainment of a license or certificate generally recognized as necessary to obtain, maintain, or advance in employment in a profession or vocation in a high technology occupation.
(d) Formal claim. A claim is a formal claim when the claimant (or his or her authorized representative) files the claim with VA, and –
(1) The claim is a claim for –
(i) Educational assistance;
(ii) An increase in educational assistance; or
(iii) An extension of the eligibility period for receiving educational assistance; and
(2) If there is a form (either paper or electronic) prescribed under this part, the claim is filed on that form.
(e) Informal claim. (1) If a form (either paper or electronic) has been prescribed under this part to use in claiming the benefit sought, the term informal claim means –
(i) Any communication from an individual, or from an authorized representative or a Member of Congress on that individual’s behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance; or
(ii) A claim from an individual or from an authorized representative on that individual’s behalf for a benefit described in paragraph (d)(1)(i) of this section that is filed in a document other than in the prescribed form.
(2) If a form (either paper or electronic) has not been prescribed to use in claiming the benefit sought, the term informal claim means any communication, other than a formal claim, from an individual, or from an authorized representative or a Member of Congress on that individual’s behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance.
(3) When VA requests evidence in connection with a claim, and the claimant submits that evidence to VA after having abandoned the claim, the claimant’s submission of the evidence is an informal claim.
(4) The act of enrolling in an approved educational institution or training establishment is not an informal claim.
(5) VA will not consider a communication received from a service organization, an attorney, or agent to be an informal claim if a valid power of attorney, executed by the claimant, is not in effect at the time the communication is written.
(f) Information. The term information means nonevidentiary facts, such as the claimant’s Social Security number or address, or the name of the educational institution the claimant is attending.
(g) Substantially complete application. (1) The term substantially complete application means, for an individual’s first application for educational assistance administered by VA, an application containing –
(i) The claimant’s name;
(ii) His or her relationship to the veteran, if applicable;
(iii) Sufficient information for VA to verify the claimed service, if applicable;
(iv) The benefit claimed;
(v) The program of education, if applicable; and
(vi) The name of the educational institution or training establishment the claimant intends to attend, if applicable.
(2) For subsequent applications for educational assistance administered by VA, a substantially complete application means an application containing the information specified in paragraphs (g)(1)(i) through (g)(1)(vi) of this section, except that the application may omit any information specified in paragraphs (g)(1)(ii) or (g)(1)(iii) of this section that is already of record with VA.
(h) Training establishment. The term training establishment means any establishment providing apprentice or other training on-the-job, including those under the supervision of a college, university, any State department of education, any State apprenticeship agency, any State board of vocational education, any joint apprenticeship committee, the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. chapter 4C, or any agency of the Federal government authorized to supervise such training.
(i) VA. The term VA means the United States Department of Veterans Affairs.
§ 21.1030 Claims.
(a) Claim for educational assistance. (1) The first time an individual claims educational assistance administered by VA for pursuit of a program of education, he or she must file an application for educational assistance using a form the Secretary prescribes for that purpose.
(2) If an individual changes his or her program of education or place of training after filing his or her first application for educational assistance, he or she must file an application requesting the change of program or place of training using a form the Secretary prescribes for that purpose.
(3) A servicemember must consult with his or her education service officer before filing an application for educational assistance, whether it is the first application or an application to request a change of program or place of training.
(b) Filing a claim for educational assistance to pay for a licensing or certification test. To receive educational assistance to pay for a licensing or certification test, an individual must file a claim for educational assistance.
(1) If the claim is the first claim for educational assistance administered by VA, the individual must file an application for educational assistance using a form the Secretary prescribes for that purpose and must include the information described in paragraphs (b)(2)(i) through (b)(2)(vi) of this section.
(2) If the claim is the second or subsequent claim for educational assistance, the claim must include:
(i) The name of the test;
(ii) The name and address of the organization or entity issuing the license or certificate;
(iii) The date the claimant took the test;
(iv) The cost of the test;
(v) A statement authorizing release of the claimant’s test information to VA, such as: “I authorize release of my test information to VA”; and
(vi) Such other information as the Secretary may require.
(c) Filing a claim for educational assistance to supplement tuition assistance provided under a program administered by the Secretary of a military department. To receive tuition assistance top-up as defined in § 21.4200(hh), an individual must file a claim for educational assistance.
(1) If the claim is the first claim for educational assistance administered by VA, the individual must file an application for educational assistance using a form the Secretary prescribes for that purpose.
(2) If the claim is the second or subsequent claim for educational assistance, the claimant may submit a statement that he or she wishes to receive tuition assistance top-up.
(3) The claimant must also submit a copy of the form(s) that the military service with jurisdiction requires for tuition assistance and that had been presented to the educational institution, covering the course or courses for which the claimant wants tuition assistance top-up. Examples of these forms include:
(i) DA Form 2171, Request for Tuition Assistance-Army Continuing Education System;
(ii) AF Form 1227, Authority for Tuition Assistance-Education Services Program;
(iii) NAVMC 10883, Application for Tuition Assistance, and either NAVEDTRA 1560/5, Tuition Assistance Authorization or NAVMC (page 2), Tuition Assistance Authorization;
(iv) Department of Homeland Security, USCG CG-4147, Application for Off-Duty Assistance; and
(v) Request for Top-Up: eArmyU Program.
(4) The claimant must also provide to VA the following information, to the extent it is not contained on any form filed under paragraph (c)(1) or (c)(3) of this section:
(i) His or her name;
(ii) His or her Social Security number;
(iii) The name of the educational institution;
(iv) The name of the course or courses for which the claimant wants educational assistance;
(v) The number of the course or courses;
(vi) The number of credit hours for each course;
(vii) The beginning and ending date of each course;
(viii) The cost of the course or courses; and
(ix) If the claimant doesn’t want to receive the full amount of that cost not met by the Secretary of the military department concerned, the portion that the claimant wishes to receive.
(5) If the claimant’s military department uses an electronic tuition assistance application process with electronic signatures, VA will accept an electronic transmission of the approved tuition assistance application directly from the military department concerned on behalf of the claimant if –
(i) The electronic tuition assistance application indicates the servicemember’s intent to claim tuition-assistance top-up; and
(ii) The information described in paragraph (c)(4) of this section is included in the electronic application.
§ 21.1031 VA responsibilities when a claim is filed.
(a) VA will furnish forms. VA will furnish all necessary VA claim forms and instructions, and, if appropriate, a description of any supporting evidence required upon receipt of an informal claim.
(b) VA has a duty to notify claimants of necessary information or evidence. (1) Except when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit, when VA receives a complete or substantially complete application for educational assistance provided under subpart C, D, G, H, K, L, or P of this part VA will –
(i) Notify the claimant of any information and evidence that is necessary to substantiate the claim; and
(ii) Inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, VA will try to obtain for the claimant.
(2) The information and evidence that VA, pursuant to paragraph (b)(1) of this section informs the claimant that the claimant must provide, must be provided within one year from the date of the notice. If VA does not receive such information and evidence from the claimant within that time period, VA may adjudicate the claim based on the information and evidence in the file.
(3) If the claimant has not responded to the request within 30 days, VA may decide the claim before the expiration of the one-year period prescribed in paragraph (b)(2) of this section, based on all the information and evidence in the file, including information and evidence it has obtained on behalf of the claimant. If VA does so, however, and the claimant subsequently provides the information and evidence within one year of the date of the request, VA must readjudicate the claim. If VA’s decision on a readjudication is favorable to the claimant, the award shall take effect as if the prior decision by VA on the claim had not been made.
(4) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. If the information necessary to complete the application is not received by VA within one year from the date of such notice, VA cannot pay or provide any benefits based on that application.
(5) For the purpose of this paragraph, if VA must notify the claimant, VA will provide notice to:
(i) The claimant;
(ii) His or her fiduciary, if any; and
(iii) His or her representative, if any.
§ 21.1032 VA has a duty to assist claimants in obtaining evidence.
(a) VA’s duty to assist begins when VA receives a complete or substantially complete application. (1) Except as provided in paragraph (d) of this section, upon receipt of a complete or substantially complete application for educational assistance under subpart C, D, G, H, K, L, or P of this part, VA will –
(i) Make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and
(ii) Give the assistance described in paragraphs (b) and (c) of this section to an individual attempting to reopen a finally decided claim.
(2) VA will not pay any fees a custodian of records may charge to provide the records VA requests.
(b) Obtaining records not in the custody of a Federal department or agency. (1) VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. These records include relevant records from:
(i) State or local governments;
(ii) Private medical care providers;
(iii) Current or former employers; and
(iv) Other non-Federal governmental sources.
(2) The reasonable efforts described in paragraph (b)(1) of this section will generally consist of an initial request for the records and, if VA does not receive the records, at least one follow-up request. The following are exceptions to this provision concerning the number of requests that VA generally will make:
(i) VA will not make a follow-up request if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.
(ii) If VA receives information showing that subsequent requests to the initial or another custodian could result in obtaining the records sought, reasonable efforts will include an initial request and, if VA does not receive the records, at least one follow-up request to the new source or an additional request to the original source.
(3) The claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including –
(i) The person, company, agency, or other custodian holding the records;
(ii) The approximate time frame covered by the records; and
(iii) In the case of medical treatment records, the condition for which treatment was provided.
(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.
(c) Obtaining records in the custody of a Federal department or agency. (1) VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to:
(i) Military records;
(ii) Medical and other records from VA medical facilities;
(iii) Records from non-VA facilities providing examination or treatment at VA expense; and
(iv) Records from other Federal agencies.
(2) VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include cases in which the Federal department or agency advises VA that the requested records do not exist or that the custodian of such records does not have them.
(3) The claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records from Federal department or agency custodians. At VA’s request, the claimant must provide enough information to identify and locate the existing records, including –
(i) The custodian or agency holding the records;
(ii) The approximate time frame covered by the records; and
(iii) In the case of medical treatment records, the condition for which treatment was provided.
(4) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records.
(d) Circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete or complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to:
(1) The claimant’s ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;
(2) Claims that are inherently not credible or clearly lack merit; and
(3) An application requesting a benefit to which the claimant is not entitled as a matter of law.
(e) Duty to notify claimant of inability to obtain records. (1) VA will notify the claimant either orally or in writing when VA:
(i) Makes reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them; or
(ii) After continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or that further efforts to obtain them would be futile.
(2) For non-Federal records requests, VA may provide the notice to the claimant at the same time it makes its final attempt to obtain the relevant records.
(3) VA will make a record of any oral notice conveyed under paragraph (e) of this section to the claimant.
(4) The notice to the claimant must contain the following information:
(i) The identity of the records VA was unable to obtain;
(ii) An explanation of the efforts VA made to obtain the records;
(iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of this section;
(iv) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and
(v) A notice that the claimant is ultimately responsible for obtaining the evidence.
(5) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the existence of such records and ask that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will ask that the claimant obtain the records and provide them to VA.
(6) For the purpose of this section, if VA must notify the claimant, VA will provide notice to:
(i) The claimant;
(ii) His or her fiduciary, if any; and
(iii) His or her representative, if any.
§ 21.1033 Time limits.
The provisions of this section are applicable to informal claims and formal claims.
(a) Failure to furnish form, information, or notice of time limit. VA’s failure to give a claimant or potential claimant any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim will not extend the time periods allowed for these actions.
(b) [Reserved]
(c) Time limit for filing a claim for an extended period of eligibility under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35. VA must receive a claim for an extended period of eligibility provided by § 21.3047, § 21.5042, § 21.7051, § 21.7551, or § 21.9535 by the later of the following dates:
(1) One year from the date on which the spouse’s, surviving spouse’s, veteran’s, reservist’s, or other eligible individual’s original period of eligibility ended; or
(2) One year from the date on which the spouse’s, surviving spouse’s, veteran’s, reservist’s, or other eligible individual’s physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education.
(d) Time limit for filing for an extension of eligibility due to suspension of program (38 U.S.C. chapter 35). VA must receive a claim for an extended period of eligibility due to a suspension of an eligible child’s program of education as provided in § 21.3043 by the later of the following dates.
(1) One year from the date on which the child’s original period of eligibility ended; or
(2) One year from the date on which the condition that caused the suspension of the program of education ceased to exist.
(e) Extension for good cause. (1) VA may extend for good cause a time limit within which a claimant or beneficiary is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension only when the following conditions are met:
(i) When a claimant or beneficiary requests an extension after expiration of a time limit, he or she must take the required action concurrently with or before the filing of that request; and
(ii) The claimant or beneficiary must show good cause as to why he or she could not take the required action during the original time period and could not have taken the required action sooner.
(2) Denials of time limit extensions are separately appealable issues.
(f) Computation of time limit. (1) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, VA will exclude the first day of the specified period, and will include the last day. This rule is applicable in cases in which the time limit expires on a workday. When the time limit would expire on a Saturday, Sunday, or holiday, the VA will include the next succeeding day in the computation.
(2) The first day of the specified period referred to in paragraph (f)(1) of this section will be the date of the letter of notification to the claimant or beneficiary for purposes of computing time limits. As to appeals, see §§ 20.203 and 20.110 of this chapter.
§ 21.1034 Review of decisions.
(a) Decisions. A claimant may request a review of a decision on eligibility or entitlement to educational assistance under title 38, United States Code. A claimant may request review of a decision on entitlement to educational assistance under 10 U.S.C. 510, and 10 U.S.C. chapters 106a, 1606, and 1607. A claimant may not request review of a decision on eligibility under 10 U.S.C. 510, and 10 U.S.C. chapters 106a, 1606, and 1607 or for supplemental or increased educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C. 3015(d), 3021, or 3316 to VA as the Department of Defense solely determines eligibility to supplemental and increased educational assistance under these sections.
(b) Reviews available. Except as provided in paragraph (d) of this section, within one year from the date on which the agency of original jurisdiction issues notice of a decision described in paragraph (a) of this section as subject to a request for review, a claimant may elect one of the following administrative review options:
(1) Supplemental Claim Review. See § 3.2501 of this chapter.
(2) Higher-level Review. See § 3.2601 of this chapter.
(3) Board of Veterans’ Appeals Review. See 38 CFR part 20.
(c) Part 3 provisions. See § 3.2500(b)-(d) of this chapter for principles that generally apply to a veteran’s election of review of a decision described in paragraph (a) of this section as subject to a request for review.
(d) Contested claims. See subpart E of part 20 of this title for the timeline pertaining to contested claims.
(e) Applicability. This section applies where notice of a decision described in paragraph (a) of this section was provided to a veteran on or after the effective date of the modernized review system as provided in § 19.2(a) of this chapter, or where a veteran has elected review of a legacy claim under the modernized review system as provided in § 3.2400(c) of this chapter.
§ 21.1035 Legacy review of benefit claims decisions.
(a) A claimant who has filed a Notice of Disagreement with a decision described in § 21.1034(a) that does not meet the criteria of § 21.1034(e) of this chapter has a right to a review under this section. The review will be conducted by the Educational Officer of the Regional Processing Officer, at VA’s discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no deference to the decision being reviewed.
(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the legacy appeal process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision.
(c) The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under the version of § 3.103(c) of this chapter predating Public Law 115-55.
(d) A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision.
(e) The reviewer may grant a benefit sought in the claim, notwithstanding § 3.105(b) of this chapter. The reviewer may not revise the decision in a manner that is less advantageous to the claimant than the decision under review, except that the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see § 3.105(a) of this chapter).
(f) Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the legacy appeal process by issuing a Statement of the Case.
Subpart C – Survivors’ and Dependents’ Educational Assistance Under 38 U.S.C. Chapter 35
General
Except as otherwise provided, authority is delegated to the Under Secretary for Benefits and to supervisory or administrative personnel within the jurisdiction of the Education Service, Veterans Benefits Administration, designated by him or her to make findings and decisions under 38 U.S.C. chapter 35 and the applicable regulations, precedents and instructions, as to the program authorized by this subpart.
§ 21.3002 Administration of Survivors’ and Dependents’ Educational Assistance Program.
Subpart D of this part applies to the Survivors’ and Dependents’ Educational Assistance Program, unless the provisions of a section in that subpart are explicitly limited to one or more of the other educational assistance programs VA administers.
§ 21.3020 Educational assistance.
The program of educational assistance under 38 U.S.C. Chapter 35 captioned Survivors’ and Dependents’ Educational Assistance, may be referred to as Dependents’ Educational Assistance.
(a) General. A program of education or special restorative training may be authorized for an eligible person who meets the definition contained in § 21.3021.
(b) 45 months limitation. Educational assistance may not exceed a period of 45 months, or the equivalent in part-time training, unless it is determined that a longer period is required for special restorative training under the circumstances outlined in § 21.3300(c) or except as specified in § 21.3044(c).
(c) Courses in foreign countries. A course to be pursued at a school not located in a State or in the Philippines may not be approved except under the circumstances outlined in § 21.4260.
§ 21.3021 Definitions.
For the purposes of subpart C and the payment of basic educational assistance under 38 U.S.C. chapter 35, the following definitions apply.
(a) Eligible person means:
(1) A child of a:
(i) Veteran who died of a service-connected disability.
(ii) Veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability.
(iii) Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.
(iv) Person who is on active duty as a member of the Armed Forces and who now is, and, for a period of more than 90 days, has been, listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.
(2) The surviving spouse of a:
(i) Veteran who died of a service-connected disability.
(ii) Veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability, arising out of active military, naval or air service after the beginning of the Spanish-American War. (See §§ 3.6(a) and 3.807 of this chapter.)
(3) The spouse of a:
(i) Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.
(ii) Person who is on active duty as a member of the Armed Forces and who now is, and, for a period of more than 90 days, has been, listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.
(b) Child means a son or daughter of a veteran as defined in § 3.807(d) of this chapter. The term includes a child of a Philippine Commonwealth Army veteran and a Philippine Scout (designated as a New Philippine Scout under 38 U.S.C. 3566(b)), as defined in § 3.40(b), (c), or (d) of this chapter, but educational assistance allowance may not be authorized based on such service for any period before September 30, 1966.
(c) Wife and widow, spouse and surviving spouse. The terms wife and widow mean an individual as defined in § 3.807(d) of this chapter and the terms spouse and surviving spouse shall have the same respective meaning when used in the regulations in part 21, Title 38, Code of Federal Regulations. Educational assistance allowance may not be authorized for any such individuals for any period before December 1, 1968.
(d) Parent or guardian means a natural or adoptive parent, a fiduciary legally appointed by a court of competent jurisdiction or any person who is determined to be otherwise legally vested with the care of the eligible person (38 U.S.C. 3501(a)(4)) or it may be the eligible person if he or she has attained majority under laws applicable in his or her State of residence as shown on the application and is under no known legal disability. (38 U.S.C. 3501(b)) The eligible person may be designated as the person by whom required actions may be taken even though he or she has not attained majority, or having attained majority, is under a legal disability, when it is determined that to do otherwise would not be in his or her best interest, would result in undue delay or would not be administratively feasible. Where necessary to protect his or her interest and there is reason why the eligible person should not act for himself or herself, some other individual may be designated as the person by whom required actions should be taken.
(e) Armed Forces, as to service by the eligible person, means the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard, including the Reserve components of each, the National Guard of the United States and the Air National Guard of the United States. (38 U.S.C. 3501 (a)(3) and (d) and 3512(a)) Effective December 31, 1970, the term includes the National Oceanic and Atmospheric Administration, the Environmental Science Services Administration and the Coast and Geodetic Survey, as to full-time duty of officers commissioned therein.
(f) Duty with the Armed Forces, as to service by the eligible person, means active duty, active duty for training for a period of 6 or more consecutive months, or an initial period of active duty for training of not less than 3 months or more than 6 months in the Ready Reserve. (38 U.S.C. 3501(a)(3) and (d), 3512(a)) See §§ 21.3041 and 21.3042.
(g) State means each of the several States, territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico, and the Canal Zone. (38 U.S.C. 101(20)) (Although the Republic of the Philippines is not included in the definition of a State, eligible persons may pursue courses of training in that country.)
(h) Program of education. The term program of education means any curriculum or any combination of unit courses or subjects pursued at an educational institution that is generally accepted as necessary to fulfill the requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. The term program of education also includes –
(1) A preparatory course for a test that is required or used for admission to an institution of higher education;
(2) A preparatory course for a test that is required or used for admission to a graduate school; and
(3) A licensing or certification test, the successful completion of which demonstrates an individual’s possession of the knowledge or skill required to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession, provided such tests and the licensing or credentialing organizations or entities that offer such tests are approved by VA.
(i) Educational objective. An educational objective is one that leads to the awarding of a diploma, degree, or certificate which reflects educational attainment.
(j) Professional or vocational objective. A professional or vocational objective is one that leads to an occupation. It may include educational objectives essential to prepare for the chosen occupation. When a program consists of a series of courses not leading to an educational objective, such courses must be directed toward attainment of a designated professional or vocational objective.
(k) School, educational institution, institution. The terms school, educational institution and institution mean:
(1) A vocational school or business school;
(2) A junior college, teachers’ college, college, normal school, professional school, university, or scientific or technical institution;
(3) A public or private secondary school;
(4) A training establishment as defined in § 21.4200(c); or
(5) An institution that provides specialized vocational training, generally recognized as on the secondary school level or above, for people with mental or physical disabilities.
(l) Disabling effects of chronic alcoholism. (1) The term disabling effects of chronic alcoholism means alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations of chronic alcoholism which in the particular case:
(i) Have been medically diagnosed as manifestations of alcohol dependency or chronic alcohol abuse; and
(ii) Are determined to have prevented commencement or completion of the affected individual’s chosen program of education.
(2) A diagnosis of alcoholism, chronic alcoholism, alcohol-dependency, chronic alcohol abuse, etc., in and of itself, does not satisfy the definition of this term.
(3) Injury sustained by an eligible spouse or surviving spouse as a proximate and immediate result of activity undertaken by the eligible spouse or surviving spouse while physically or mentally unqualified to do so due to alcoholic intoxication is not considered a disabling effect of chronic alcoholism.
(m) Institution of higher education. The term institution of higher education has the same meaning as provided in § 21.7020(b)(45).
(n) Graduate school. The term graduate school has the same meaning as provided in § 21.7020(b)(46).
(o) Eligibility date. The term eligibility date means the date on which an individual becomes an eligible person (as defined in paragraph (a) of this section).
(p) P&T means permanent and total “disability,” permanently and totally “disabled,” or permanent and total “rating,” when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran.
(q) Initial rating decision. The term initial rating decision means, with respect to an eligible spouse or child, a decision made by VA that establishes for the person from whom such eligibility is derived –
(1) Service connection for the cause of the person’s death;
(2) A service connected P&T disability; or
(3) For a member of the Armed Forces, a P&T disability incurred or aggravated in the line of duty in the active military, naval, or air service if the member is hospitalized or receiving outpatient medical care, services, or treatment, and is likely to be discharged or released from such service for such disability.
(r) Effective date of the P&T rating. The term effective date of the P&T rating means the date from which VA considers that the veteran’s P&T disability commenced for purposes of VA benefits, as determined by the initial rating decision.
(s) First finds. The term first finds means the effective date of the P&T rating or the date VA first notifies the veteran of that rating, whichever is more advantageous to the child.
(t) Counseling psychologist means the same as provided in § 21.35(k)(1).
(u) Vocational rehabilitation counselor means the same as provided in § 21.35(k)(7).
(v) Additional definitions. The definitions of all terms that are defined in §§ 21.1029 and 21.4200 but that are not defined in this section apply to subpart C of this part.
Duty periods. See § 3.6 of this chapter.
Persons included. See § 3.7 of this chapter.
Philippine and insular forces. See § 3.40 of this chapter.
§ 21.3022 Nonduplication – programs administered by VA.
A person who is eligible for educational assistance under 38 U.S.C. chapter 35 and is also eligible for assistance under any of the provisions of law listed in this paragraph cannot receive such assistance concurrently. The eligible person must choose which benefit he or she will receive for the particular period(s) of training during which education or training is to be pursued. The individual may choose to receive benefits under another program (other than 38 U.S.C. chapter 33) at any time, but not more than once in a calendar month. The individual may choose to receive benefits under 38 U.S.C. chapter 33 at any time, but not more than once during a certified term, quarter, or semester.
(a) 38 U.S.C. chapter 30 (Montgomery GI Bill – Active Duty);
(b) 38 U.S.C. chapter 31 (Veteran Readiness and Employment (VR&E));
(c) 38 U.S.C. chapter 32 (Post-Vietnam Era Veterans’ Educational Assistance);
(d) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);
(e) 10 U.S.C. chapter 1606 (Montgomery GI Bill – Selected Reserve);
(f) 10 U.S.C. chapter 1607 (Reserve Educational Assistance Program);
(g) 10 U.S.C. chapter 106a (Educational Assistance Test Program);
(h) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note.);
(i) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note.); and
(j) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399).
§ 21.3023 Nonduplication; pension, compensation, and dependency and indemnity compensation.
(a) Child; age 18. A child who is eligible for educational assistance and who is also eligible for pension, compensation or dependency and indemnity compensation based on school attendance must elect whether he or she will receive educational assistance or pension, compensation or dependency and indemnity compensation.
(1) An election of educational assistance either before or after the age of 18 years is a bar to subsequent payment or increased rates or additional amounts of pension, compensation or dependency and indemnity compensation on account of the child based on school attendance on or after the age of 18 years. The bar is equally applicable where the child has eligibility from more than one parent.
(2) Payment of pension, compensation or dependency and indemnity compensation to or on account of a child after his or her 18th birthday does not bar subsequent payments of educational assistance.
(3) An election of educational assistance will not preclude the allowance of pension, compensation, or dependency and indemnity compensation based on school attendance for periods, including vacation periods, prior to the commencement of educational assistance.
(b) Child; under 18 or helpless. Educational assistance allowance or special restorative training allowance may generally be paid concurrently with pension, compensation or dependency and indemnity compensation for a child under the age of 18 years or for a helpless child based on the service of one or more parents. Where, however, entitlement is based on the death of more than one parent in the same parental line, concurrent payments in two or more cases may not be authorized if the death of one such parent occurred on or after June 9, 1960. In the latter cases, an election of educational assistance and pension, compensation or dependency and indemnity compensation in one case does not preclude a reelection of benefits before attaining age 18 or while helpless based on the service of another parent in the same parental line.
(c) Child; election. An election by a child under this section must be submitted to VA in writing.
(1) Except as provided in paragraph (c)(2) of this section, an election to receive Survivors’ and Dependents’ Educational Assistance (DEA) is final when the eligible child commences a program of education under DEA (38 U.S.C. chapter 35). Commencement of a program of education under DEA will be deemed to have occurred for VA purposes on the date the first payment of DEA educational assistance is made, as evidenced by negotiation of the first check or receipt of the first payment by electronic funds transfer.
(2) An election based on erroneous information furnished by an authorized representative of the Department of Veterans Affairs is not considered final.
(3) A child other than a helpless child, whose eligibility was based on a finding that the veteran had a permanent total service-connected disability and who commenced a program of education under DEA may not thereafter qualify as a dependent for disability compensation purposes if the veteran is later found to be less than permanently and totally disabled, or for pension, compensation or dependency and indemnity compensation after the veteran’s death.
(d) Spouse or surviving spouse. Educational assistance allowance may be paid for an eligible spouse or surviving spouse concurrently with pension, compensation or dependency and indemnity compensation.
Discontinuance. See § 3.503(a)(8) of this chapter.
Concurrent payments. See § 3.707 of this chapter.
Certification. See § 3.807 of this chapter.
§ 21.3024 Nonduplication; Federal Employees’ Compensation Act.
(a) Civilian employment. The provisions of this paragraph are applicable to cases where there is eligibility for benefits from the Office of Workers’ Compensation Programs, under the Federal Employees’ Compensation Act (FECA) based on the disability or death as a result of civilian employment of the veteran from whom eligibility for educational assistance is derived.
(1) Child, spouse or surviving spouse. A person who is eligible for educational assistance and is also eligible for Office of Workers’ Compensation Programs benefits, under the Federal Employees’ Compensation Act (FECA) must elect which benefit he or she will receive.
(2) Veteran, spouse and child – surviving spouse and child. An eligible person may receive educational assistance notwithstanding that the Office of Workers’ Compensation Programs benefits under the Federal Employees’ Compensation Act (FECA) are being paid to a veteran, or surviving spouse.
(3) Election. An election of Office of Workers’ Compensation Programs benefits, under the Federal employees’ Compensation Act (FECA), by or for a child filed on or after July 4, 1966, is a bar to subsequent payments of Department of Veterans Affairs benefits during the period of concurrent eligibility. An election of Office of Workers’ Compensation Programs benefits under the Federal Employees’ Compensation Act (FECA) by a surviving spouse filed on or after December 1, 1968, is a bar to subsequent payments of Department of Veterans Affairs benefits during the period of concurrent eligibility.
(b) Military service. The provisions of this paragraph are applicable to cases where there is eligibility for benefits from Office of Workers’ Compensation Program, under the Federal Employee’s Compensation Act (FECA) based on the disability or death as a result of military service by the veteran from whom eligibility for educational assistance is derived.
(1) Child, spouse or surviving spouse. A person who is eligible for educational assistance and is also eligible for Office of Workers’ Compensation Programs benefits, under the Federal Employees’ Compensation Act (FECA) must elect which benefit he or she will receive. The election may be made at any time.
(2) Veteran, spouse and child – surviving spouse and child. An eligible person may receive educational assistance notwithstanding that the Office of Workers’ Compensation Programs benefits, under the Federal Employees’ Compensation Act (FECA) are being paid to a veteran, or surviving spouse.
Federal Employees’ Compensation. See § 3.708 of this chapter.
§ 21.3025 Nonduplication; Federal programs.
Payment of subsistence allowance and special training allowance is prohibited to an otherwise eligible person –
(a) Who is on active duty and is pursuing a course of education which is being paid for by the Armed Forces (or by the Department of Health and Human Services in the case of the Public Health Service); or
(b) For a unit course or courses which are being paid for under 5 U.S.C. chapter 41.
Claims
§ 21.3030 Claims.
The provisions of subpart B of this part apply with respect to submission of a claim for educational assistance under 38 U.S.C. chapter 35, VA actions upon receiving a claim, and time limits connected with claims.
Eligibility and Entitlement
§ 21.3040 Eligibility; child.
(a) Commencement. A program of education or special restorative training may not be afforded prior to the eligible person’s 18th birthday or the completion of secondary schooling, whichever is earlier, unless it is determined through counseling that the best interests of the eligible person will be served by entering training at an earlier date and the eligible person has passed:
(1) Compulsory school attendance age under State law; or
(2) His or her 14th birthday and due to physical or mental handicap may benefit by special restorative or specialized vocational training.
(b) Secondary schooling. Completion of secondary schooling means completion of a curriculum offered by a public or private school which satisfies the requirements for a high school diploma or its equivalent – usually completion of the 12th grade in the public school system.
(c) Age limitation for commencement. No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability, or on or before the date the veteran’s death occurred, or on or before the 91st day of listing by the Secretary concerned of the member of the Armed Forces on whose service eligibility is claimed as being in one of the missing status categories of § 21.3021 (a)(1)(iv) and (3)(ii).
(d) Termination of eligibility. No person is eligible for educational assistance beyond his or her 31st birthday, except as provided under § 21.3041(g)(2). In no event may educational assistance be provided after the period of entitlement has been exhausted. In an exceptional case special restorative training may be provided in excess of 45 months. See § 21.3300.
§ 21.3041 Periods of eligibility; child.
(a) Eligibility derived from a veteran with a P&T disability. An eligible child’s period of eligibility generally begins on the child’s 18th birthday, or on the successful completion of the child’s secondary schooling, whichever first occurs. The period of eligibility generally ends on the earlier of the date of the child’s 26th birthday or the date the veteran is no longer P&T disabled. VA will extend an eligible child’s period of eligibility for the reasons listed in paragraphs (g) and (h) of this section. See paragraph (c) of this section if the child serves on duty in the Armed Forces as an eligible child after his or her 18th birthday and before his or her 26th birthday. If the veteran dies while the P&T rating is in effect and before the eligible child’s 26th birthday, see paragraph (b) of this section to determine the new period of eligibility. Exceptions to this general period of eligibility are as follows:
(1) Period of eligibility may begin before the child’s 18th birthday. The period of eligibility may begin before the eligible child’s 18th birthday for one of the reasons in paragraphs (a)(1)(i), (ii), or (iii) of this section. The period of eligibility ends on the earlier of the date the veteran is no longer rated P&T disabled or the date of the child’s 26th birthday. See § 21.3135(h) if the veteran is no longer rated P&T disabled.
(i) The child completed compulsory school attendance under applicable State law (see § 21.3040(a) and (b));
(ii) The child is pursuing a course designed to prepare him or her for an examination required or used for entrance into an institution of higher education or a graduate school; or
(iii) The child is beyond his or her 14th birthday and has a physical or mental handicap (see § 21.3040(a)).
(2) Period of eligibility may begin after the child’s 18th birthday. A child’s period of eligibility may begin after his or her 18th birthday if VA first finds the veteran has a P&T disability after the child’s 18th birthday but before the child’s 26th birthday. See paragraph (e) of this section if an adopted child becomes eligible through qualifying as the veteran’s child after VA first finds the veteran has a P&T disability. See paragraph (f) of this section if a stepchild becomes eligible through qualifying as the veteran’s child after VA first finds the veteran is P&T disabled.
(i) Beginning date if the effective date of the initial P&T rating is before the child’s 18th birthday and notification to the veteran occurs after the child’s 18th birthday and before his or her 26th birthday. If the effective date of the P&T rating is before the child’s 18th birthday, and the date of notification to the veteran occurs after the child’s 18th birthday but before the child’s 26th birthday, the child may elect the beginning date of his or her period of eligibility. (See paragraph (i) of this section for election requirements.) If the child elects a beginning date that is before his or her 18th birthday, the period of eligibility ends the earlier of the date that the veteran is no longer rated P&T disabled, or the date of the child’s 26th birthday. If the child elects a beginning date after his or her 18th birthday, the period of eligibility ends the earlier of the date the veteran is no longer rated P&T disabled or 8 years after the beginning date the child elects. (See § 21.3135(h) if the veteran is no longer rated P&T disabled.) The child can elect as a beginning date either –
(A) The date of his or her 18th birthday;
(B) The date he or she completed compulsory school attendance under applicable State law (see § 21.3040(a) and (b)), if that date is on or after the effective date of the P&T rating and before his or her 18th birthday;
(C) The date he or she begins a course designed to prepare him or her for an examination required or used for entrance into an institution of higher education or a graduate school, if that date is on or after the effective date of the P&T rating and before the date of notification to the veteran of the P&T rating. If the child elects the beginning date of enrollment in such course, he or she may not receive educational assistance for pursuit of secondary schooling unless secondary school pursuit is otherwise authorized (see § 21.3040);
(D) The date VA notifies the veteran of the P&T rating; or
(E) Any date between the applicable date described in paragraphs (a)(2)(i)(A) through (C) of this section and the date in paragraph (a)(2)(i)(D) of this section.
(ii) Beginning date if the effective date of the P&T rating is after the child’s 18th birthday and before child’s 26th birthday. If the effective date of the P&T rating occurs after the child’s 18th birthday but before the child’s 26th birthday, the child may elect the beginning date of his or her period of eligibility. (See paragraph (i) of this section for election requirements.) The period of eligibility ends the earlier of the date the veteran is no longer rated P&T disabled, or 8 years after the beginning date the child elects. (See § 21.3135(h) if the veteran is no longer rated P&T disabled.) The child can elect as a beginning date –
(A) The effective date of the P&T rating;
(B) The date VA notifies the veteran of the veteran’s P&T rating; or
(C) Any date in between.
(b) Eligibility derived as the result of veteran’s death. An eligible child’s period of eligibility begins on the child’s 18th birthday, or on the successful completion of the child’s secondary schooling, whichever first occurs. The period of eligibility ends on the child’s 26th birthday. VA will extend an eligible child’s period of eligibility for reasons shown in paragraphs (g) and (h) of this section. See paragraph (c) of this section if the child serves on duty in the Armed Forces as an eligible child after his or her 18th birthday and before his or her 26th birthday. Exceptions to this general period of eligibility are as follows:
(1) Period of eligibility may begin before the child’s 18th birthday. The period of eligibility may begin before the eligible child’s 18th birthday for one of the reasons in paragraphs (i), (ii), or (iii) of this paragraph. The ending date of the period of eligibility is the child’s 26th birthday.
(i) The child completed compulsory school attendance under applicable State law (see § 21.3040(a) and (b));
(ii) The child is pursuing a course designed to prepare him or her for an examination required or used for entrance into an institution of higher education or a graduate school; or
(iii) The child is beyond his or her 14th birthday and has a physical or mental handicap (see § 21.3040(a)).
(2) Period of eligibility may begin after the child’s 18th birthday. If the veteran’s death occurs after the child’s 18th birthday but before the child’s 26th birthday, the child may elect the beginning date of his or her period of eligibility. The period of eligibility ends 8 years after the beginning date the child elects. See paragraph (i) of this section for election requirements. VA may extend the period of eligibility for one of the reasons shown in paragraph (g) or (h) of this section. See paragraph (c) of this section if the child serves in the Armed Forces as an eligible person after his or her 18th birthday and before his or her 26th birthday. The child can elect as a beginning date any date between the –
(i) Date of the veteran’s death; or
(ii) Date of VA’s decision that the veteran’s death was service-connected.
(c) Period of eligibility for a child who serves on duty in the Armed Forces as an eligible person. If the child serves on duty in the Armed Forces as an eligible person (as defined in § 21.3021(a)(1)) after the child’s 18th birthday and before the child’s 26th birthday, the child is eligible for a modified ending date based on the provisions of this paragraph. Under the provisions of this paragraph, the period of eligibility ends 8 years after the date of the child’s first discharge or release from such duty, or the child’s 31st birthday, whichever is earlier. VA may extend the ending date for one of the reasons shown in paragraph (g) of this section. See paragraph (h) of this section if the child is ordered to active duty as a reservist.
(d) Eligibility derived from a parent who is listed by the Armed Forces as missing in action, captured in the line of duty, or forcibly detained or interned in line of duty by a foreign government or power. (1) If a child establishes eligibility through the provisions of § 21.3021(a)(1)(iv) after his or her 18th birthday but before his or her 26th birthday, the period of eligibility will end on the earliest of the following dates:
(i) When the parent is no longer listed as described in § 21.3021(a)(1)(iv);
(ii) Eight years after the date on which the child becomes eligible under such provisions; or
(iii) The child’s 31st birthday.
(2) VA may extend the ending date for one of the reasons shown in paragraphs (g) or (h) of this section. See § 21.3135(i) if the child is enrolled in an educational institution and the child’s ending date is based on paragraph (d)(1)(i) of this section. See paragraph (c) of this section if the child serves in the Armed Forces as an eligible person after his or her 18th birthday and before his or her 26th birthday.
(e) Adopted child qualifies after VA firsts finds the veteran P&T disabled. If an adopted child becomes eligible through qualifying as the veteran’s child (see 38 CFR 3.57(c)) and the date the child so becomes eligible is after VA first finds the veteran is P&T disabled, the beginning date of eligibility is the date determined pursuant to paragraphs (a) through (d) of this section, but in no event before the date the adopted child qualifies as the veteran’s child under § 3.57(c) of this chapter. The ending date is the child’s 26th birthday. VA may extend the period of eligibility for one of the reasons in paragraph (g) or (h) of this section. See paragraph (c) of this section if the child serves on duty in the Armed Forces as an eligible person.
(f) Stepchild qualifies after VA first finds the veteran P&T disabled. If a stepchild becomes eligible through qualifying as the veteran’s child and a member of the veteran’s household after VA first finds the veteran is P&T disabled, the beginning date of the period of eligibility is the date determined pursuant to paragraphs (a) through (d) of this section, but in no event before the date he or she becomes the veteran’s stepchild and a member of the veteran’s household. The ending date of the period of eligibility is the stepchild’s 26th birthday. VA may extend the ending date for one of the reasons in paragraphs (g) or (h) of this section. See paragraph (c) of this section for the ending date of the period of eligibility if the stepchild serves on active duty in the Armed Forces as an eligible person. See § 21.3135(g) for award discontinuance dates if the veteran and the stepchild’s natural or adopted parent divorce or the stepchild ceases to be a member of the veteran’s household.
(g) Extensions to ending dates. (1) If an eligible child suspends pursuit of his or her program due to conditions that VA determined were beyond the child’s control, VA may extend the period of eligibility ending date (see § 21.3043). VA cannot grant an extension beyond age 31 to those children whose period of eligibility ending date (as determined under paragraphs (a) through (f) of this section) is subject to an age limitation.
(2) If an eligible child’s period of eligibility ending date (as determined under paragraphs (a) through (f), or (h) of this section) occurs while the child is enrolled in an educational institution, VA may extend the period of eligibility (extensions may be made beyond age 31) –
(i) To the end of the quarter or semester, for a child enrolled in an educational institution that regularly operates on the quarter or semester system; or
(ii) To the end of the course, not to exceed 12 weeks, for a child who completed a major portion of a course while enrolled in an educational institution that operates under other than a quarter or semester system.
(3) If an eligible child’s period of eligibility ending date (as determined under paragraphs (a) through (f), or (h) of this section) occurs while the child is pursuing training in a training establishment (as defined in § 21.4200(c)), VA cannot extend the ending date.
(h) Notwithstanding any other provision of this section, if during an eligible child’s period of eligibility, as determined in paragraphs (a) through (g) of this section, but after September 10, 2001, an eligible child is ordered to active duty or involuntarily ordered to full-time National Guard duty VA will grant an extension of the child’s period of eligibility. The extension will be equal to the length of the period served plus an additional 4 months for each qualifying period and applies if after September 10, 2001, the eligible child is –
(i) Ordered to serve on active duty under section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10, United States Code; or
(ii) Involuntarily ordered to full-time National Guard duty under section 502(f) of title 32, United States Code.
(i) Elections. (1) VA must provide written notice to certain eligible children informing them of their right to elect the beginning date of their period of eligibility. The written notice must identify the beginning dates the child may choose from and must contain a statement that the child must make the election within 60 days of the date of the written notice. An eligible child may elect his or her beginning date if –
(i) The effective date of the P&T rating is before the child’s 18th birthday, and date of the notification to the veteran from whom the child derives eligibility occurs after the child’s 18th birthday but before the child’s 26th birthday (see paragraph (a)(2)(i) of this section);
(ii) The effective date of the P&T rating, or the date of notification to the veteran from whom the child derives eligibility, occurs after the child’s 18th birthday but before the child’s 26th birthday (see paragraph (a)(2)(ii) of this section);
(iii) The veteran’s death occurs after the child’s 18th birthday but before the child’s 26th birthday (see paragraph (b)(2) of this section);
(iv) The child makes such election within 60 days of VA’s written notice to the child informing him or her of the right to elect his or her beginning date; and
(v) The child’s election is in accordance with the choices VA identified in the written notice described in paragraph (i)(1) of this section.
(2) If the child does not elect a beginning date within 60 days of VA’s written notice informing him or her of the right to elect a beginning date, the period of eligibility beginning date will be whichever of the following applies –
(i) The date of VA’s decision that the veteran has a P&T disability; or
(ii) The date of VA’s decision that the veteran’s death is service-connected.
(3) If upon review of the child’s application VA determines the child is entitled to and eligible for an immediate award of educational assistance under 38 U.S.C. chapter 35, VA will for purposes of such award –
(i) Consider the beginning date of the child’s period of eligibility to be the date of VA’s decision that the –
(A) Veteran has a P&T disability in the case of a child whose eligibility is derived from a veteran with a P&T disability; or
(B) Veteran’s death is service-connected in the case of a child whose eligibility is derived due to the veteran’s death.
(ii) Notify the child of his or her right to elect a beginning date in accordance with paragraph (i)(1) of this section.
(iii) Adjust the child’s beginning date based on the child’s election if the child makes an election within 60 days after VA’s written notice in accordance with paragraph (i)(1) of this section.
§ 21.3042 Service with Armed Forces.
(a) No educational assistance under 38 U.S.C. chapter 35 may be provided an otherwise eligible person during any period he or she is on duty with the Armed Forces. See § 21.3021 (e) and (f). This does not apply to brief periods of active duty for training. See § 21.3135(f).
(b) If the eligible person served with the Armed Forces, his or her discharge or release from each period of service must have been under conditions other than dishonorable.
§ 21.3043 Suspension of program; child.
For an eligible person who suspends his program due to conditions determined by the Department of Veterans Affairs to have been beyond his or her control the period of eligibility may, upon his request, be extended by the number of months and days intervening the date the suspension began and the date the reason for suspension ceased to exist. The burden of proof is on the eligible person to establish that suspension of a program was due to conditions beyond his or her control. The period of suspension shall be considered to have ended as of the date of the person’s first available opportunity to resume training after the condition which caused it ceased to exist. The following circumstances may be considered as beyond the eligible person’s control:
(a) While in active pursuit of a program of education he or she is appointed by the responsible governing body of an established church, officially charged with the selection and designation of missionary representatives, in keeping with its traditional practice, to serve the church in an official missionary capacity and is thereby prevented from pursuit of his or her program of studies.
(b) Immediate family or financial obligations beyond his or her control require the eligible person to take employment, or otherwise preclude pursuit of his or her program.
(c) Unavoidable conditions arising in connection with the eligible person’s employment which preclude pursuit of his or her program.
(d) Pursuit of his or her program is precluded because of the eligible person’s own illness or illness or death in his or her immediate family.
(e) Active duty, including active duty for training in the Armed Forces.
§ 21.3044 Entitlement.
(a) Limitations on entitlement. Each eligible person in entitled to educational assistance not in excess of 45 months, or the equivalent thereof in part-time training. The Department of Veterans Affairs will not authorize an extension of entitlement except as provided in paragraph (c) of this section. The period of entitlement when added to education or training received under any or all of the laws cited in § 21.4020 will not exceed 48 months of full-time educational assistance. The period of entitlement will not be reduced by any period during which employment adjustment allowance was paid after the eligible person completes a period of rehabilitation and reaches a point of employability.
(b) Continuous pursuit is not required. The 45-month period of entitlement is any 45 months within the period of eligibility. The eligible person is not required to pursue his or her program for 45 consecutive months.
(c) Exceeding the 45 months limitation. The 45 months limitation may be exceeded only in the following cases:
(1) Where no charge against the entitlement is made based on a course or courses pursued by a spouse or surviving spouse under the special assistance for the educationally disadvantaged program (See § 21.3344(d); or
(2) Where special restorative training authorized under § 21.3300 exceeds 45 months.
§ 21.3045 Entitlement charges.
VA will make record-purpose charges against an eligible person’s 38 U.S.C. chapter 35 entitlement only when required by this section. Charges for institutional training will be based upon the principle that an eligible person who trains full time for 1 day should be charged 1 day of entitlement.
(a) No entitlement charge for eligible persons receiving tutorial assistance. VA will make no charge against the entitlement of an eligible person for tutorial assistance received in accordance with § 21.4236.
(b) Entitlement charges for elementary and secondary education. (1) When an eligible spouse or surviving spouse is pursuing a course leading to a secondary school diploma or an equivalency certificate as described in § 21.3344, there are two sets of circumstances which will always result in VA’s making no charge against his or her entitlement. These are as follows:
(i) Either the eligible spouse or surviving spouse completed training during the period beginning on October 1, 1980, and ending on August 14, 1989, and remained continuously enrolled from October 1, 1980, through the time the spouse or surviving spouse either completed training or August 14, 1989, whichever is earlier; or
(ii) The eligible spouse or surviving spouse completed training before August 15, 1989, and received educational assistance based upon the tuition and fees charged for the course.
(2) When an eligible spouse or surviving spouse is pursuing a course leading to a secondary school diploma or an equivalency certificate as described in § 21.3344, the following circumstances will always result in VA’s making a charge against his or her entitlement unless the provisions of paragraph (d) of this section would exempt the spouse or surviving spouse from receiving an entitlement charge.
(i) The spouse or surviving spouse elects to receive dependents’ educational assistance at the rate described in § 21.3131(a), and
(ii) Either was not pursuing a course leading to a secondary school diploma or equivalency certificate on October 1, 1980, or has not remained continuously enrolled in such a course since October 1, 1980.
(3) When an eligible person pursues refresher, remedial or deficiency training before August 15, 1989, the following provisions govern the charge against the entitlement.
(i) VA will not make a charge against the entitlement of an eligible spouse or surviving spouse.
(ii) VA will make a charge against the entitlement of an eligible child.
(4) The following provisions apply to an eligible person for training received after August 14, 1989. When he or she is pursuing a course leading to a secondary school diploma or equivalency certificate or refresher, remedial or deficiency training.
(i) VA will make no charge against the entitlement of an eligible person for the first five months of full time pursuit (or its equivalent in part-time pursuit).
(ii) VA will make a charge against the entitlement of an eligible person for pursuit in excess of the pursuit described in paragraph (b)(4)(i) unless the provisions of paragraph (d) of this section would exempt the eligible person from receiving an entitlement charge.
(c) Other courses for which entitlement will be charged. Except when the requirements of paragraph (d) of this section are met, VA will make a charge against the period of entitlement of –
(1) An eligible person for pursuit of a program of apprenticeship or other on-job training;
(2) A spouse or surviving spouse for pursuit of a correspondence course; or
(3) An eligible person for the pursuit of any course not described in paragraph (a) or (b) of this section.
(d) Exemption from entitlement charge. (1) VA will not make a charge against the entitlement of an eligible person for the pursuit of any course or courses when the requirements of paragraphs (d)(1)(i) and (ii) of this section are met, by VA finding that the eligible person –
(i) Had to discontinue pursuit of the course or courses as a result of being –
(A) Ordered, in connection with the Persian Gulf War by orders dated before September 11, 2001, to serve on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or under former 10 U.S.C. 672(a), 672(d), 672(g), 673, or 673(b) (redesignated effective December 1, 1994, as 10 U.S.C. 12301(a), 12301(d), 12301(g), 12302, and 12304, respectively);
(B) Ordered, by orders dated after September 10, 2001, to serve on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304; or
(C) Involuntarily ordered, by orders dated after September 10, 2001, to full-time National Guard duty under 32 U.S.C. 502(f).
(ii) Failed to receive credit or training time toward completion of the eligible person’s approved educational, professional or vocational objective as a result of having to discontinue, for a reason described in paragraph (d)(1)(i) of this section, his or her course pursuit.
(2) The period for which VA will not make a charge against entitlement shall not exceed the portion of the period of enrollment in the course or courses for which the eligible person failed to receive credit or with respect to which the eligible person lost training time.
(e) Determining entitlement charge. The provisions of this paragraph apply to all courses except those courses for which VA is not making a charge against the eligible person’s entitlement, apprenticeship or other on-job training, correspondence courses, and courses offered solely through independent study.
(1) After making any adjustments required by paragraph (e)(3) of this section, VA will make a charge against entitlement –
(i) On the basis of total elapsed time (one day for each day of pursuit) if the eligible person is pursuing the program of education on a full-time basis,
(ii) On the basis of a proportionate rate of elapsed time, if the eligible person is pursuing a program of education on a three-quarter, one-half or less than one-half time basis. For the purpose of this computation, training time which is less than one-half, but more than one-quarter time, will be treated as though it were one-quarter time training.
(2) VA will compute elapsed time from the commencing date of enrollment to date of discontinuance. If the eligible person changes his or her training time after the commencing date of enrollment, VA will –
(i) Divide the enrollment period into separate periods of time during which the eligible person’s training time remains constant; and
(ii) Compute the elapsed time separately for each time period.
(3) An eligible person may concurrently enroll in refresher, remedial or deficiency training for which paragraph (b)(3) or (b)(4)(i) of this section requires no charge against entitlement and in a course or courses for which paragraph (b)(2) or (b)(4)(ii) or (c) of this section requires a charge against entitlement. When this occurs, VA will charge entitlement for the concurrent enrollment based only on pursuit of the courses described in paragraph (b)(2) or (b)(4)(ii) or (c) of this section, measured in accordance with §§ 21.4270 through 21.4275 of this part, as appropriate.
(f) Entitlement charge for pursuit solely by independent study. For enrollments in terms, quarters, or semesters that begin after June 30, 1993, VA will make charges against the entitlement of an eligible person in the manner prescribed by paragraph (e) of this section, if he or she is pursuing a program of education solely by independent study. For all other enrollments where the eligible person is pursuing a program of education solely by independent study, the computation will be made as though the eligible person’s training were one-quarter time.
(g) Entitlement charge for apprenticeship or other on-job training. For each month that an eligible person is paid a monthly educational assistance allowance while undergoing apprenticeship or other on-job training, including months in which the eligible person fails to complete 120 hours of training, VA will make a record-purpose charge against 38 U.S.C. chapter 35 entitlement, if any, as follows:
(1) For training pursued before October 1, 2005, VA will reduce chapter 35 entitlement by one month for each month of benefits paid.
(2) For training pursued on or after October 1, 2005, VA will reduce chapter 35 entitlement proportionately based on the percentage rate (rounded to the nearest percentage) determined by dividing the amount of the training assistance paid for the month by the monthly educational assistance payable for full-time enrollment in an educational institution.
(h) Entitlement charge for correspondence courses. The charge against entitlement of a spouse or surviving spouse for pursuit of a course exclusively by correspondence will be 1 month for each of the following amounts paid as an educational assistance allowance:
(1) $788.00, paid after June 30, 2004, and before October 1, 2004;
(2) $803.00, paid after September 30, 2004, and before October 1, 2005;
(3) $827.00, paid after September 30, 2005, and before October 1, 2006;
(4) $860.00, paid after September 30, 2006, and before October 1, 2007;
(5) $881.00, paid after September 30, 2007, and before October 1, 2008; and
(6) $915.00, paid after September 30 2008.
(i) Overpayment cases. VA will make a charge against entitlement for an overpayment only if the overpayment is discharged in bankruptcy, is waived and is not recovered, or is compromised.
(1) If the overpayment is discharged in bankruptcy or is waived and is not recovered, the charge against entitlement will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).
(2) If the overpayment is compromised and the compromise offer is less than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).
(3) If the overpayment is compromised and the compromise offer is equal to or greater than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be determined by –
(i) Subtracting from the sum paid in the compromise offer the amount attributable to interest, administrative costs of collection, court costs and marshal fees,
(ii) Subtracting the remaining amount of the overpayment balance determined in paragraph (i)(3)(i) of this section from the amount of the original overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees),
(iii) Dividing the result obtained in paragraph (h)(3)(ii) of this section by the amount of the original debt (exclusive of interest, administrative costs of collection, court costs and marshal fees), and
(iv) Multiplying the percentage obtained in paragraph (h)(3)(iii) of this section by the amount of the entitlement otherwise chargeable for the period of the original overpayment.
(j) Interruption to conserve entitlement. An eligible person may not interrupt a certified period of enrollment for the purpose of conserving entitlement. An educational institution may not certify a period of enrollment for a fractional part of the normal term, quarter or semester, if the eligible person is enrolled for the term, quarter or semester. VA will make a charge against entitlement for the entire period of certified enrollment, if the eligible person is otherwise eligible for benefits, except when benefits are interrupted under any of the following conditions:
(1) Enrollment is actually terminated;
(2) The eligible person cancels his or her enrollment, and does not negotiate an educational benefits check for any part of the certified period of enrollment;
(3) The eligible person interrupts his or her enrollment at the end of any term, quarter, or semester within the certified period of enrollment, and does not negotiate a check for educational benefits for the succeeding term, quarter, or semester;
(4) The eligible person requests interruption or cancellation for any break when a school was closed during a certified period of enrollment, and VA continued payments under an established policy based upon an Executive Order of the President or an emergency situation. Whether the eligible person negotiated a check for educational benefits for the certified period is immaterial.
(k) Education loan after otherwise applicable delimiting date – spouse or surviving spouse. VA will make a charge against the entitlement of a spouse or surviving spouse who receives an education loan pursuant to § 21.4501(c) at the rate of 1 day for each day of entitlement that would have been used had the spouse or surviving spouse been in receipt of educational assistance allowance for the period for which the loan was granted.
§ 21.3046 Periods of eligibility; spouses and surviving spouses.
This section states how VA will compute the beginning date, the ending date and the length of a spouse’s or surviving spouse’s period of eligibility. The period of eligibility of a spouse computed under the provisions of paragraph (a) of this section will be recomputed under the provisions of paragraph (b) of this section if her or his status changes to that of surviving spouse.
(a) Beginning date of eligibility period-spouses. (1) If the permanent total rating is effective before December 1, 1968, the beginning date of the 10-year period of eligibility is December 1, 1968.
(2) The beginning date of eligibility –
(i) Shall be determined as provided in paragraph (a)(2) of this section when –
(A) The permanent total rating is effective after November 30, 1968, or the notification to the veteran of the rating was after that date, and
(B) Eligibility does not arise under § 21.3021(a)(3)(ii) of this part.
(ii) For spouses for whom VA made a final determination of eligibility before October 28, 1986, shall be –
(A) The effective date of the rating, or
(B) The date of notification, whichever is more advantageous to the spouse.
(iii) For spouses for whom VA made a final determination of eligibility after October 27, 1986, shall be –
(A) The effective date of the rating, or
(B) The date of notification, or
(C) Any date between the dates specified in paragraphs (a)(2)(iii) (A) and (B) of this section as chosen by the eligible spouse.
(iv) May not be changed once a spouse has chosen it as provided in paragraph (a)(2)(iii) of this section.
(3) If eligibility arises under § 21.3021(a)(3)(ii) of this part, the beginning date of the 10-year eligibility period is –
(i) December 24, 1970, or
(ii) The date the member of the Armed Forces on whose service eligibility is based was so listed by the Secretary concerned, whichever last occurs.
(b) Beginning date of eligibility period-surviving spouses. (1) If VA determines before December 1, 1968, that the veteran died of a service-connected disability, the beginning date of the 10-year period is December 1, 1968.
(2) If the veteran’s death occurred before December 1, 1968, but VA does not determine that the veteran died of a service-connected disability until after November 30, 1968, the beginning date of the 10-year period is the date on which VA determines that the veteran died of a service-connected disability.
(3) If the veteran’s death occurred before December 1, 1968, while a total, service-connected disability evaluated as permanent in nature was in existence, the beginning date of the 10-year period is December 1, 1968.
(4) If the veteran’s death occurred after November 30, 1968, and VA makes a final decision concerning the surviving spouse’s eligibility for dependents’ educational assistance before October 28, 1986, the beginning date of the 10-year period is –
(i) The date of death of the veteran who dies while a total, service-connected disability evaluated as permanent in nature was in existence, or
(ii) The date on which VA determines that the veteran died of a service-connected disability.
(5) If the veteran’s death occurred after November 30, 1968, and VA makes a final decision concerning the surviving spouse’s eligibility for dependents educational assistance after October 27, 1986, VA will determine the beginning date of the 10-year period as follows.
(i) If the surviving spouse’s eligibility is based on the veteran’s death while a total, service-connected disability evaluated as permanent in nature was in existence, the beginning date of the 10-year period is the date of death.
(ii) If the surviving spouse’s eligibility is based on the veteran’s death from a service-connected disability, the surviving spouse will choose the beginning date of the 10-year period. That date will be no earlier than the date of death and no later than the date of the VA determination that the veteran’s death was due to a service-connected disability.
(6) Once a surviving spouse has chosen a beginning date of eligibility as provided in paragraph (b)(5) of this section, the surviving spouse may not revoke that choice.
(c) Ending date of eligibility period – (1) Spouses. (i) If on or after December 27, 2001, VA makes a determination of eligibility for a spouse, the period of eligibility cannot exceed 10 years. The eligibility period can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(ii) If before December 27, 2001, VA made a determination of eligibility for a spouse, the eligibility period has no ending date unless the spouse changes his or her program of education. If on or after December 27, 2001, the spouse changes his or her program of education, the eligibility period cannot exceed 10 years. The beginning date of the eligibility period is determined as provided in paragraph (a) of this section. The 10-year eligibility period can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(iii) Notwithstanding the provisions of paragraph (c)(1)(i) of this section, if eligibility arises before October 24, 1972, educational assistance will not be afforded later than October 23, 1982, based on a course or program of correspondence, apprentice, or other on-the-job training, approved under the provisions of § 21.4256, § 21.4261, or § 21.4262, except that VA may award educational assistance beyond October 23, 1982, if the eligible spouse qualifies for the extended period of eligibility as provided in paragraph (c)(3) of this section and § 21.3047.
(2) Surviving spouses. (i) For surviving spouses, the period of eligibility cannot exceed 10 years and can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(ii) If eligibility arises before October 24, 1972, educational assistance will not be afforded later than October 23, 1982, based on a course or program of correspondence, apprentice, or other on-the-job training approved under the provisions of § 21.4256, § 21.4261, or § 21.4262, except that VA may award educational assistance beyond October 23, 1982, if the eligible surviving spouse qualifies for an extended period of eligibility as provided in paragraph (c)(3) of this section and § 21.3047.
(iii) The eligibility period for a surviving spouse is not reduced by any earlier period during which the surviving spouse was eligible for educational assistance under this chapter as a spouse.
(3) Extensions due to certain orders dated after September 10, 2001. Notwithstanding any other provisions of this section, if a spouse or surviving spouse, during the eligibility period otherwise applicable to such individual under this section, serves on active duty pursuant to an order to active duty dated after September 10, 2001, issued under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or is involuntarily ordered by an order dated after September 10, 2001, to full-time National Guard duty under 32 U.S.C. 502(f), VA will grant the individual an extension of the ending date of his or her eligibility period. The extension will equal the length of the period of such active duty plus four months.
(d) Extension to ending date. (1) The ending date of a spouse’s period of eligibility may be extended when the spouse is enrolled and eligibility ceases for one of the following reasons:
(i) The veteran is no longer rated permanently and totally disabled;
(ii) The spouse is divorced from the veteran without fault on the spouse’s part; or
(iii) The spouse no longer is listed in any of the categories of § 21.3021(a)(3)(ii) of this part.
(2) If the spouse is enrolled in a school operating on a quarter or semester system, VA will extend the period of eligibility to the end of the quarter or semester, regardless of whether the spouse has reached the midpoint of the quarter, semester or term.
(3) If the spouse is enrolled in a school not operating on a quarter or semester system, VA will extend the period of eligibility to the earlier of the following:
(i) The end of the course, or
(ii) 12 weeks.
(4) If the spouse is enrolled in a course pursued exclusively by correspondence, VA will extend the period of eligibility to whichever of the following will result in the lesser expenditure:
(i) The end of the course, or
(ii) The total additional amount of instruction that –
(A) $2,206 provides during the period July 1, 2004, through September 30, 2004;
(B) $2,248 provides during the period October 1, 2004, through September 30, 2005;
(C) $2,316 provides during the period October 1, 2005, through September 30, 2006;
(D) $2,408 provides during the period October 1, 2006, through September 30, 2007;
(E) $2,467 provides during the period October 1, 2007, through September 30, 2008; or
(F) $2,562 provides after September 30, 2008.
(5) VA will not extend the period of eligibility when the spouse is pursuing training in a training establishment as defined in § 21.4200(c) of this part.
(6) An extension may not –
(i) Exceed maximum entitlement, or
(ii) Extend beyond the delimiting date specified in paragraph (a) of this section or § 21.3047, as appropriate.
§ 21.3047 Extended period of eligibility due to physical or mental disability.
(a) General. (1) An eligible spouse or surviving spouse shall be granted an extension of the applicable period of eligibility as otherwise determined by § 21.3046 provided the eligible spouse or surviving spouse:
(i) Applies for the extension within the appropriate time limit;
(ii) Was prevented from initiating or completing the chosen program of education within the otherwise applicable period of eligibility because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse or surviving spouse;
(iii) Provides VA with any requested evidence tending to show that the requirement of paragraph (a)(1)(ii) of this section has been met; and
(iv) Is otherwise eligible for payment of educational assistance for the training pursuant to 38 U.S.C. chapter 35.
(2) In determining whether the eligible spouse or surviving spouse was prevented from initiating or completing the chosen program of education because of a physical or mental disability, VA will consider the following:
(i) It must be clearly established by medical evidence that such a program of education was medically infeasible.
(ii) An eligible spouse or surviving spouse who is disabled for a period of 30 days or less will not be considered as having been prevented from initiating or completing a chosen program, unless the evidence establishes that the eligible spouse or surviving spouse was prevented from enrolling or reenrolling in the chosen program of education, or was forced to discontinue attendance, because of the short disability.
(iii) VA will not consider the disabling effects of chronic alcoholism to be the result of willful misconduct and will consider those disabling effects as physical or mental disabilities.
(b) Commencing date. The eligible spouse or surviving spouse shall elect the commencing date of an extended period of eligibility. The date chosen –
(1) Must be on or after the original date of expiration of eligibility as determined by § 21.3046(c); and
(2) Must be on or before the ninetieth day following the date on which the eligible spouse’s or surviving spouse’s application for an extension was approved by VA, if the eligible spouse or surviving spouse is training during the extended period of eligibility in a course not organized on a term, quarter, or semester basis; or
(3) Must be on or before the first ordinary term, quarter, or semester following the ninetieth day after the eligible spouse’s or surviving spouse’s application for an extension was approved by VA if the eligible spouse or surviving spouse is training during the extended period of eligibility in a course organized on a term, quarter, or semester basis.
(c) Length of extended periods of eligibility. An eligible spouse’s or surviving spouse’s extended period of eligibility shall be for the length of time that the individual was prevented from initiating or completing his or her chosen program of education. This shall be determined as follows:
(1) If the eligible spouse or surviving spouse is in training in a course organized on a term, quarter, or semester basis, his or her extended period of eligibility shall contain the same number of days as the number of days from the date during the eligible spouse’s or surviving spouse’s original period of eligibility that his or her training became medically infeasible to the earliest of the following dates:
(i) The commencing date of the ordinary term, quarter, or semester following the day the eligible spouse’s or surviving spouse’s training became medically feasible;
(ii) The ending date of the eligible spouse’s or surviving spouse’s period of eligibility as determined by § 21.3046(c); or
(iii) The date the eligible spouse or surviving spouse resumed training.
(2) If the eligible spouse or surviving spouse is training in a course not organized on a term, quarter, or semester basis, his or her extended period of eligibility shall contain the same number of days from the date during the eligible spouse’s or surviving spouse’s original period of eligibility that his or her training became medically infeasible to the earlier of the following dates:
(i) The date the eligible spouse’s or surviving spouse’s training became medically feasible; or
(ii) The ending date of the eligible spouse’s or surviving spouse’s period of eligibility as determined by § 21.3046.
Counseling
§ 21.3100 Counseling.
(a) Purpose of counseling. The purpose of counseling is to assist:
(1) In selecting an educational or training objective;
(2) In developing a suitable program of education or training;
(3) In selecting an educational institution or training establishment appropriate for the attainment of the educational or training objective;
(4) In resolving any personal problems which are likely to interfere with successful pursuit of a program;
(5) In selecting an employment objective for the eligible person that would be likely to provide the eligible person with satisfactory employment opportunities in light of his or her circumstances.
(b) Availability of counseling. Counseling assistance is available for –
(1) Identifying and removing reasons for academic difficulties which may result in interruption or discontinuance of training; or
(2) In considering changes in career plans, and making sound decisions about the changes.
(c) Provision of counseling. VA shall provide counseling as needed for the purposes identified in paragraphs (a) and (b) of this section upon the request of the eligible person.
§ 21.3102 Required counseling.
(a) Child. The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) will provide counseling and assist in preparing the educational plan only if the eligible child or his or her parent or guardian requests assistance, except that counseling is required for an eligible child if –
(1) The eligible child may require specialized vocational training or special restorative training; or
(2) The eligible child has reached the compulsory school attendance age under State law, but has neither reached his or her 18th birthday, nor completed secondary schooling. See § 21.3040(a).
(b) Spouse or surviving spouse. Counseling is required for a spouse or surviving spouse only if he or she desires specialized vocational training.
§ 21.3103 Failure to cooperate.
VA will not act further on an eligible person’s application for assistance under 38 U.S.C. chapter 35 when counseling is required for him or her and the eligible person –
(a) Fails to report;
(b) Fails to cooperate in the counseling process; or
(c) Does not complete counseling to the extent required under § 21.3102.
§ 21.3104 Special training.
(a) Initial counseling. A counseling psychologist or vocational rehabilitation counselor in the Veteran Readiness and Employment (VR&E) Division will counsel an eligible person with a disability who is a child, spouse, or surviving spouse before referring the case to the Vocational Rehabilitation Panel (established under § 21.60) for consideration as to the child’s, spouse’s or surviving spouse’s need for a course of specialized vocational training or special restorative training. After consulting with the panel, and considering the panel’s report, the counseling psychologist or vocational rehabilitation counselor will determine if the child, spouse, or surviving spouse needs a course of specialized vocational training or special restorative training, and where need is found to exist will prescribe a course which is suitable to accomplish the goals of 38 U.S.C. chapter 35.
(b) Counseling after special restorative training. When an eligible person completes or discontinues a course of special restorative training without having selected an objective and a program of education, a counseling psychologist or vocational rehabilitation counselor in the VR&E Division will provide additional counseling to assist him or her in selecting a program of education suitable to accomplish the purposes of 38 U.S.C. chapter 35.
§ 21.3105 Travel expenses.
(a) General. VA shall determine and pay the necessary expense of travel to and from the place of counseling for an eligible person who is required to receive counseling as provided under 38 U.S.C. 111 (a), (d), (e), and (g).
(b) Restriction. VA will not pay the necessary cost of travel to and from the place of counseling when counseling is not required, but is provided as a result of a voluntary request by the eligible person.
Payments
§ 21.3130 Educational assistance.
(a) Approval of a program of education. VA will approve a program of education selected by an eligible person if:
(1) The program is described in § 21.3021 (h) and (i) or (j);
(2) The individual is not already qualified for the objective of the program of education;
(3) The proposed educational institution or training establishment is in compliance with all the requirements of 38 U.S.C. chapters 35 and 36; and
(4) It does not appear that the enrollment in or pursuit of such person’s program of education would violate any provision of 38 U.S.C. chapters 35 and 36.
(b) Payments. VA will pay educational assistance at the rate specified in § 21.3131 (subject to the reductions required by § 21.3132) while the eligible person is pursuing an approved program of education or training.
(c) No payment for excessive training. (1) VA will make no payment for:
(i) Training in an apprenticeship or other on-job training program in excess of the number of hours approved by the State approving agency or VA; or
(ii) Lessons completed in a correspondence course in excess of the number approved by the State approving agency.
(2) A school’s standards of progress may permit a student to repeat a course or portion of a course in which he or she has done poorly. VA considers the repeated courses to be part of the program of education. VA will make no payment for courses or training if the courses or training are not part of the eligible person’s program of education.
(d) Courses precluded. VA may not pay educational assistance:
(1) For pursuit of a course if approval of the enrollment in the course is precluded by § 21.4252;
(2) For training in a foreign country unless the training is in the Philippines or is approved pursuant to the provisions of § 21.4260;
(3) For pursuit of a course offered by open-circuit television, unless the eligible person’s pursuit meets the requirements of § 21.4233(c); or
(4) For pursuit of a course offered by independent study, unless the course is accredited, meets the requirements of § 21.4253, and leads to a standard college degree.
(e) Commencing date. In determining the commencing date of an award of educational assistance, VA will apply the provisions of § 21.4131.
§ 21.3131 Rates of payment.
(a) Rates. (1) VA will publish the monthly rates of basic educational assistance allowance payable under paragraph (a)(2) of this section on the GI Bill education and training website each time there is an increase in the rates.
(2) Except as provided in § 21.3132, the monthly rate of basic educational assistance allowance payable to an eligible person, as defined in § 21.3021, will be the applicable rate provided in 38 U.S.C. 3532, 3686 or 3687, as increased each fiscal year in accordance with 38 U.S.C. 3564 and 3687(d). The rate of pursuit will be determined in accordance with § 21.4270.
(b) Less than half time. The monthly rate for an eligible person who is pursuing an institutional course on less than one-half time basis may not exceed the monthly rate of the cost of the course computed on basis of the total cost for tuition and fees which the school requires similarly circumstanced individuals enrolled in the same course to pay. “Cost of the course” does not include the cost of books or supplies which the student is required to purchase at his or her own expense.
(c) Courses leading to a secondary school diploma or equivalency certificate. The monthly rate of Survivors’ and Dependents’ Educational Assistance payable for an eligible person enrolled in a course leading to a secondary school diploma or equivalency certificate shall be the rate for institutional training stated in paragraph (a) of this section.
(d) Payments made to eligible persons in the Republic of the Philippines or to certain Filipinos. When the eligible person is pursuing training at an institution located in the Republic of the Philippines or when an eligible child’s entitlement is based on the service of a veteran in the Philippine Commonwealth Army, or as a Philippine Scout as defined in § 3.40 (b), (c), or (d) of this chapter, payments of educational assistance allowance made after December 31, 1994, will be made at the rate of 50 cents for each dollar authorized.
§ 21.3132 Reductions in survivors’ and dependents’ educational assistance.
The monthly rates established in § 21.3131 shall be reduced as stated in this section whenever the circumstances described in this section arise.
(a) No educational assistance allowance for some incarcerated eligible persons. VA will pay no educational assistance allowance to an eligible person who:
(1) Is incarcerated in a Federal, State, or local penal institution for conviction of a felony; and
(2) Is enrolled in a course:
(i) For which there are no tuition or fees, or charges for books, supplies, and equipment; or
(ii) For which tuition and fees are being paid by a Federal program (other than one administered by VA) or by a State or local program, and the eligible person is incurring no charge for the books, supplies, and equipment necessary for the course.
(b) Reduced educational assistance allowance for some incarcerated eligible persons – felony conviction. (1) VA will pay a reduced educational assistance allowance to an eligible person who:
(i) Is incarcerated in a Federal, State, or local penal institution for conviction of a felony; and
(ii) Is enrolled in a course:
(A) For which the eligible person pays some (but not all) of the charges for tuition and fees; or
(B) For which a Federal program (other than one administered by VA) or a State or local program pays all the charges for tuition and fees, but which requires the eligible person to pay for books, supplies, and equipment.
(2) The monthly rate of educational assistance allowance payable to such an eligible person who is pursuing a course on a half-time or greater basis shall be the lesser of the following:
(i) The monthly rate of the portion of the tuition and fees that the eligible person must pay plus the monthly rate of the charge to the eligible person for the cost of necessary supplies, books, and equipment; or
(ii) The monthly rate stated in § 21.3131.
(3) The monthly rate of educational assistance payable to such an eligible person who is pursuing the course on a less than half-time basis or on a one quarter-time basis shall be the lowest of the following:
(i) The monthly rate of the tuition and fees charged for the course;
(ii) The monthly rate of tuition and fees which the eligible person must pay plus the monthly rate of the charge to the eligible person for the cost of necessary supplies, books, and equipment; or
(iii) The monthly rate stated in § 21.3131.
(c) Reduction in training assistance allowance. (1) For any month in which an eligible person pursuing an apprenticeship or on-job training program fails to complete 120 hours of training, VA shall reduce the rate specified in § 21.3131(a) proportionally. In this computation VA shall round the number of hours worked to the nearest multiple of eight.
(2) For the purpose of this paragraph hours worked include only:
(i) The training hours the eligible person worked; and
(ii) All hours of the eligible person’s related training which occurred during the standard workweek and for which the eligible person received wages.
(d) Mitigating circumstances. (1) VA will not pay benefits to any eligible person for a course from which the eligible person withdraws or receives a nonpunitive grade which is not used in computing the requirements for graduation unless the provisions of this paragraph are met.
(i) The eligible person withdraws because he or she is ordered to active duty; or
(ii) All of the following criteria are met:
(A) There are mitigating circumstances;
(B) The eligible person submits a description of the circumstances in writing to VA either within one year from the date VA notifies the eligible person that he or she must submit the mitigating circumstances or at a later date if the eligible person is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the description of the mitigating circumstances; and
(C) The eligible person submits evidence supporting the existence of mitigating circumstances within one year of the date that evidence is requested by VA, or at a later date if the eligible person is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the evidence supporting the existence of mitigating circumstances.
(2) The following circumstances are representative of those which the Department of Veterans Affairs considers to be mitigating provided they prevent the eligible person from pursuing the program of education continuously. This list is not all inclusive.
(i) An illness of the eligible person,
(ii) An illness or death in the eligible person’s family,
(iii) An unavoidable geographical transfer resulting from the eligible person’s employment,
(iv) An unavoidable change in the eligible person’s conditions of employment,
(v) Immediate family or financial obligations beyond the control of the eligible person which require him or her to suspend pursuit of the program of education to obtain employment,
(vi) Discontinuance of a course by a school,
(vii) Unanticipated active duty for training,
(viii) Unanticipated difficulties in caring for the eligible person’s child or children.
(3) If the eligible child fails to complete satisfactorily a course of special restorative training or if the eligible person fails to complete satisfactorily a course under section 3533, Title 38 U.S.C., without fault, the Department of Veterans Affairs will consider the circumstances which caused the failure to be mitigating. This will be the case even if the circumstances were not so severe as to preclude continuous pursuit of a program of education.
(4) In the first instance of a withdrawal after May 31, 1989, from a course or courses for which the eligible person received educational assistance under title 38 U.S.C. or under chapter 1606, title 10 U.S.C., VA will consider that mitigating circumstances exist with respect to courses totaling not more than six semester hours or the equivalent. Eligible persons to whom the provisions of this subparagraph apply are not subject to the reporting requirement found in paragraph (d)(1)(ii) of this section.
(5) If an eligible person withdraws from a course during a drop-add period, VA will consider the circumstances which caused the withdrawal to be mitigating. Eligible persons who withdraw from a course during a drop-add period are not subject to the reporting requirement found in paragraph (d)(1)(ii) of this section.
§ 21.3133 Payment procedures.
(a) Release of payments and payment procedures. In determining whether payments of educational assistance allowance may be made in a lump sum, in advance, for an interval or if a certification is required from an eligible person before a payment may be made, VA will apply the provisions of § 21.4138.
(b) Payee. (1) VA will pay an educational assistance allowance to the eligible person if he or she has attained majority and has no known legal disability.
(2) If an eligible person has not attained majority, VA will pay an educational assistance allowance directly to an eligible person, a relative, or some other person for the use and benefit of the eligible person notwithstanding a legal disability on the part of the eligible person when VA determines:
(i) The best interest of the eligible person would be served;
(ii) Undue delay in payment would be avoided; or
(iii) Payment would otherwise not be feasible.
(c) Payment of accrued benefits. Educational assistance remaining due and unpaid at the date of the eligible person’s death is payable under the provisions of § 3.1000 of this chapter.
(d) Tutorial assistance. An individual who is otherwise eligible to receive benefits under the Survivors’ and Dependents’ Educational Assistance program may receive supplemental monetary assistance to provide tutorial services. In determining whether VA will pay the individual this assistance, VA will apply the provisions of § 21.4236.
(e) Offsets: 38 U.S.C. chapter 35, compensation, pension and dependency and indemnity compensation. Payment of dependents’ educational assistance will be subject to offset of amounts of pension, compensation or dependency and indemnity compensation paid over the same period on behalf of a child based on school attendance.
(f) Final payment. VA may withhold final payment until VA receives proof of continued enrollment and adjusts the eligible person’s account.
§ 21.3135 Reduction or discontinuance dates for awards of educational assistance allowance.
The reduction or discontinuance date of an award of educational assistance will be as stated in this section. If more than one basis for reduction or discontinuance is involved, the earliest date will control.
(a) Ending date of course. Educational assistance allowance will be discontinued on the ending date of the course or period of enrollment as certified by the school.
(b) Ending date of eligibility. Educational assistance allowance will be discontinued on the ending date of the eligible person’s eligibility as determined by § 21.3041, § 21.3042, § 21.3043, or § 21.3046.
(c) General reduction or discontinuance dates. Educational assistance allowance will be reduced or discontinued on the date specified in § 21.4135.
(d) Divorce. If the veteran and eligible spouse divorce, the discontinuance date for the eligible spouse’s award of educational assistance will be:
(1) The end of the quarter or semester if the school is operated on a quarter or semester system, and the divorce was without fault on the eligible spouse’s part;
(2) The end of the course or a 12-week period, whichever is earlier, if the school does not operate on a quarter or semester system, and the divorce was without fault on the eligible spouse’s part; or
(3) In all other instances, the date the divorce decree becomes final.
(e) Remarriage or other relationship of spouse or surviving spouse. (1) If an eligible surviving spouse remarries, the date of discontinuance of his or her award of educational assistance allowance will be the last date of attendance before remarriage.
(2) If a spouse or surviving spouse begins a relationship by living with another person and holding himself or herself out openly to the public to be the spouse of the other person, the date of discontinuance of his or her award of educational assistance allowance will be the last date of the month before the spouse’s or surviving spouse’s relationship began.
(f) Entrance on active duty (§ 21.3042). If an eligible person enters on active duty, VA will terminate his or her educational assistance allowance on the day before the day of entrance on active duty. Brief periods of active duty for training, if the school permits such an absence without interruption of training, will not result in termination of the allowance under this paragraph.
(g) Eligible stepchild ceases to be a stepchild or stepchild ceases to be a member of the veteran’s household. (1) If the child ceases to be the veteran’s stepchild because the veteran and the stepchild’s natural or adoptive parent divorce, the eligibility ending date is as follows:
(i) If the child ceases to be the veteran’s stepchild while the child is not in training, the ending date of the child’s period of eligibility is the date on which the child ceases to be the veteran’s stepchild.
(ii) If the child ceases to be the veteran’s stepchild while the child is training in a school organized on a term, semester, or quarter basis, the ending date of the child’s eligibility is the last day of the term, semester, or quarter during which the child ceases to be the veteran’s stepchild.
(iii) If the child ceases to be the veteran’s stepchild while the child is training in a school not organized on a term, semester, or quarter basis, the ending date of the child’s eligibility is the end of the course, or 12 weeks from the date on which the child ceases to be the veteran’s stepchild, whichever is earlier.
(2) If the stepchild ceases to be a member of the veteran’s household, he or she is no longer eligible. For purposes of this paragraph, VA considers a stepchild a member of the veteran’s household even when the stepchild is temporarily not living with the veteran, so long as the actions and intentions of the stepchild and veteran establish that normal family ties have been maintained during the temporary absence. VA will determine the stepchild’s eligibility ending date as follows:
(i) If the stepchild ceases to be a member of the veteran’s household while the stepchild is not in training, the eligibility ending date is the date on which the stepchild ceases to be a member of the veteran’s household.
(ii) If the stepchild ceases to be a member of the veteran’s household while the stepchild is training in a school organized on a term, semester, or quarter basis, the ending date of the stepchild’s eligibility is the last day of the term, semester, or quarter during which the stepchild ceases to be a member of the veteran’s household.
(iii) If the stepchild ceases to be a member of the veteran’s household while the stepchild is training in a school not organized on a term, semester, or quarter basis, the ending date of the stepchild’s eligibility is the end of the course, or 12 weeks from the date on which the stepchild ceases to be a member of the veteran’s household. See § 21.3041(f).
(h) Veteran no longer rated permanently and totally disabled. (1) If the veteran on whose service an eligible person’s eligibility is based is no longer permanently and totally disabled, VA will discontinue the educational assistance allowance –
(i) On the last date of the quarter or semester during which VA rated the veteran as no longer permanently and totally disabled if the eligible person’s educational institution is organized on a quarter or semester basis; or
(ii) On the earlier of the following dates when the eligible person’s educational institution is not organized on a quarter or semester basis:
(A) The last date of the course;
(B) The end of a 12-week period beginning on the date VA rated the veteran as being no longer permanently and totally disabled.
(i) Serviceperson is removed from “missing status” listing. (1) If the serviceperson on whose service an eligible person’s eligibility is based is removed from the “missing status” listing, VA will discontinue the educational assistance allowance –
(i) On the last date of the quarter or semester during which the serviceperson was removed from the “missing status” listing if the eligible person’s educational institution is organized on a quarter or semester basis; or
(ii) On the earlier of the following dates when the eligible person’s educational institution is not organized on a quarter or semester basis:
(A) The last date of the course;
(B) The end of a 12-week period beginning on the date the serviceperson was removed from the “missing status” listing.
(j) Fugitive felons. (1) VA will not award educational assistance allowance to an otherwise eligible person for any period after December 26, 2001, during which the –
(i) Eligible person is a fugitive felon; or
(ii) Veteran from whom eligibility is derived is a fugitive felon.
(2) The date of discontinuance of an award of educational assistance allowance to an eligible person is the later of –
(i) The date of the warrant for the arrest of the felon; or
(ii) December 27, 2001.
Special Restorative Training
§ 21.3300 Special restorative training.
(a) Purpose of special restorative training. The Department of Veterans Affairs may prescribe special restorative training where needed to overcome or lessen the effects of a physical or mental disability for the purpose of enabling an eligible person to pursue a program of education, special vocational program or other appropriate goal. Medical care and treatment or psychiatric treatment are not included.
(b) Eligible persons. VA may prescribe special restorative training for an eligible person who is a child, spouse, or surviving spouse except for a spouse whose qualification as an eligible person is under § 21.3021(a)(3)(ii). The special restorative training must begin after December 26, 2001, for a spouse or surviving spouse.
(c) Special restorative training courses. The counseling psychologist or vocational rehabilitation counselor, after consulting with the Vocational Rehabilitation Panel, may prescribe for special restorative training purposes courses such as –
(1) Speech and voice correction or retention,
(2) Language retraining,
(3) Speech (lip) reading,
(4) Auditory training,
(5) Braille reading and writing,
(6) Training in ambulation,
(7) One-hand typewriting,
(8) Nondominant handwriting,
(9) Personal, social and work adjustment training,
(10) Remedial reading, and
(11) Courses at special schools for mentally and physically disabled or
(12) Courses provided at facilities which are adapted or modified to meet special needs of disabled students.
(d) Duration of special restorative training. VA may provide special restorative training in excess of 45 months where an additional period of time is needed to complete the training. Entitlement, including any authorized in excess of 45 months, may be expended through an accelerated program requiring a rate of payment for tuition and fees in excess of –
(1) $247.00 a month for the period beginning July 1, 2004, and ending September 30, 2004;
(2) $251.00 a month for the period beginning October 1, 2004, and ending September 30, 2005;
(3) $258.00 a month for the period beginning October 1, 2005, and ending September 30, 2006;
(4) $268.00 a month for the period beginning October 1, 2006, and ending September 30, 2007;
(5) $274.00 a month for the period beginning October 1, 2007, and ending September 30, 2008; and
(6) $284.00 a month for months after September 30, 2008.
(e) Special restorative training precluded in Department of Veterans Affairs facilities. Special restorative training will not be provided in Department of Veterans Affairs facilities.
§ 21.3301 Need.
(a) Determination of need. When special restorative training has been requested or is being considered for an eligible person with a disability who is a child, spouse, or surviving spouse, a counseling psychologist or vocational rehabilitation counselor will obtain all information necessary to determine the need for and feasibility of special restorative training. After the counseling psychologist or vocational rehabilitation counselor completes this task, he or she will refer the case to the Vocational Rehabilitation Panel. The panel will consider whether –
(1) There exists a handicap which will interfere with pursuit of a program of education;
(2) The period of special restorative training materially will improve the child’s, spouse’s, or surviving spouse’s ability to:
(i) Pursue a program of education,
(ii) Pursue a program of specialized vocational training,
(iii) Obtain continuing employment in a sheltered workshop, or
(iv) Adjust in his or her family or community;
(3) The special restorative training may be pursued concurrently with a program of education;
(4) Training will affect adversely the child’s, spouse’s, or surviving spouse’s mental or physical condition;
(5) In the case of a child, whether it is in the best interest of the child to begin special restorative training after his or her 14th birthday; and
(6) The Department of Veterans Affairs:
(i) Has considered assistance available under provisions of State-Federal programs for education of individuals with disabilities; and
(ii) Has determined that it is in the eligible person’s interest to receive benefits under 38 U.S.C. chapter 35.
(b) Report. The Vocational Rehabilitation Panel will prepare a written report of its findings and recommendations as to the need for assistance and the types of assistance which should be provided. The report will be sent to the counseling psychologist or vocational rehabilitation counselor.
(c) Development and implementation. Following consultation with the panel and receipt of the panel’s report, the counseling psychologist or vocational rehabilitation counselor will determine the need for and feasibility of special restorative training. If this determination is affirmative, the counseling psychologist or vocational rehabilitation counselor will prepare an individualized written plan comparable to a plan for an extended evaluation under 38 U.S.C. chapter 31. In the case of an eligible person who is a spouse or surviving spouse, or a child who has attained majority under laws applicable in his or her State of residence, the plan will be developed jointly with the spouse or surviving spouse, or the child, respectively. In the case of an eligible person who has a guardian or has not attained majority under laws applicable in his or her State of residence, the plan will be developed jointly with the eligible person and his or her parent or guardian (see § 21.3021(d)).
(d) Notification of disallowance. When an eligible person, or a parent or guardian on behalf of an eligible person, has requested special restorative training, and the counseling psychologist or vocational rehabilitation counselor finds that this training is not needed or will not materially improve the eligible person’s condition, VA will inform the eligible person, except that VA will inform his or her parent or guardian (see § 21.3021(d)) if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, in writing of the finding and of his or her appeal rights.
(e) Reentrance after interruption. The case of an eligible person shall be referred to the panel for consideration of whether the eligible person may be permitted reentrance into special restorative training following interruption. The panel will recommend approval to the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) if there is a reasonable expectation that the purpose of special restorative training will be accomplished. See § 21.3306.
§ 21.3302 Special restorative training agreements and reports.
(a) Agreements to provide training. The Department of Veterans Affairs may make agreements with public or private educational institutions or others to provide suitable and necessary special restorative training for an eligible person.
(b) Tuition charge. When a customary tuition charge is not applicable, the agreement will include the fair and reasonable amounts charged for the training provided to the eligible person.
(c) Reports. Each educational institution or other provider of a course of special restorative training must report promptly the eligible person’s enrollment in, interruption of, or termination of the course of special restorative training.
§ 21.3303 Extent of training.
(a) Length of special restorative training. Ordinarily, special restorative training may not exceed 12 months. When the counseling psychologist or vocational rehabilitation counselor, after consulting with the Vocational Rehabilitation Panel, determines that more than 12 months of training is necessary, he or she will refer the program to the Executive Director, Veteran Readiness and Employment (VR&E) Service for prior approval. Where the plan for a program of special restorative training itself (not in combination with the program of education) will require more than 45 months (or its equivalent in accelerated payments) the plan will be included in the recommendation to the Executive Director, VR&E Service for approval.
(b) Ending dates of eligibility. (1) No child may receive special restorative training after reaching the end of his or her eligibility period as determined under § 21.3041.
(2) No spouse or surviving spouse may receive special restorative training after reaching the end of his or her eligibility period as determined under §§ 21.3046 and 21.3047.
(c) Full-time training. An eligible person will pursue special restorative training on a full-time basis.
(1) Full-time training requires training for:
(i) That amount of time per week which commonly is required for a full-time course at the educational institution when, based on medical findings, the Department of Veterans Affairs determines that the eligible person’s physical or mental condition permits training for that amount of time, or
(ii) The maximum time per week permitted by the eligible person’s disability, as determined by the Department of Veterans Affairs, based on medical findings, if the disability precludes the weekly training time stated in paragraph (c)(1)(i) of this section.
(2) If the hours per week that can reasonably be devoted to restorative training will not of themselves equal the time required by paragraph (c)(1) of this section, the course will be supplemented with subject matter which will contribute toward the objective of the program of education.
§ 21.3304 Assistance during training.
(a) General. A counseling psychologist or vocational rehabilitation counselor will provide the professional and technical assistance needed by the eligible person in pursuing special restorative training. The assistance will be timely, sustained and personal.
(b) Adjustments in the training situation. The counseling psychologist or vocational rehabilitation counselor must be continually aware of the eligible person’s progress. At frequent intervals he or she will determine whether the eligible person is progressing satisfactorily. When the counseling psychologist or vocational rehabilitation counselor determines that adjustments are needed in the course or in the training situation, he or she will act immediately to bring about the adjustments in accordance with the following:
(1) When the eligible person or his or her instructor indicates dissatisfaction with elements of the program, the counseling psychologist or vocational rehabilitation counselor, through personal discussion with the eligible person or his or her instructor or both, will, if possible, correct the difficulty through such means as making minor adjustments in the course or by persuading the eligible person to give more attention to performance.
(2) When major difficulties cannot be corrected, the counseling psychologist or vocational rehabilitation counselor will prepare a report of pertinent facts and recommendations for action in consultation with the Vocational Rehabilitation Panel.
(3) Action will be taken to terminate the eligible person’s course at the proper time so that his or her entitlement may be conserved when the counseling psychologist or vocational rehabilitation counselor determines that:
(i) The eligible person is progressing much faster than anticipated, and
(ii) The eligible person’s course may be terminated with satisfactory results before the time originally planned.
§ 21.3305 “Interrupted” status.
(a) Special restorative training should be uninterrupted. An eligible person once entered into special restorative training should pursue his or her course to completion without interruption. Wherever possible, continuous training shall be provided for each eligible person, including training during the summer, except where, because of his or her physical condition or other good reason, it would not be to his or her best interest to pursue training. As long as the eligible person is progressing satisfactorily toward overcoming the effects of his or her disability(ies), the eligible person will be continued in his or her course of training without accounting for days of nonattendance within the authorized enrollment.
(b) Interrupting special restorative training. Special restorative training will be interrupted as necessary under the following conditions:
(1) During summer vacations or periods when no instruction is given before and after summer sessions.
(2) During a prolonged period of illness or medical infeasibility.
(3) When the eligible person voluntarily abandons special restorative training.
(4) When the eligible person fails to make satisfactory progress in the special restorative training course.
(5) When the eligible person is no longer acceptable to the institution because of failure to maintain satisfactory conduct or progress in accordance with the rules of the institution.
(6) When the eligible person’s progress is materially retarded because of his or her negligence, lack of application or misconduct.
§ 21.3306 Reentrance after interruption.
When a course of special restorative training has been interrupted and the eligible person presents himself or herself for reentrance, the Department of Veterans Affairs will act as follows:
(a) Reentrance without corrective action. A counseling psychologist or vocational rehabilitation counselor will approve reentrance when special restorative training was interrupted:
(1) For a scheduled vacation period, such as a summer break,
(2) For a short period of illness, or
(3) For other reasons which permit reentrance in the same course of special restorative training without corrective action.
(b) Consultation with Vocational Rehabilitation Panel. (1) A counseling psychologist or vocational rehabilitation counselor will consult with the Vocational Rehabilitation Panel when special restorative training was interrupted –
(i) By reason of failure to maintain satisfactory conduct or progress, or
(ii) For any other reason, which requires corrective action, such as changes of place of training, change of course, personal adjustment, etc.
(2) If the counseling psychologist or vocational rehabilitation counselor determines that the conditions which caused the interruption can be overcome, he or she will approve the necessary adjustment.
(3) The counseling psychologist or vocational rehabilitation counselor will make a finding of infeasibility if –
(i) All efforts to effect proper adjustment in the case have failed; and
(ii) There is substantial evidence, resolving any reasonable doubt in favor of the eligible person (as discussed in § 3.102 of this chapter), that additional efforts will be unsuccessful.
§ 21.3307 “Discontinued” status.
(a) Placement in “discontinued” status. If reentrance from interrupted status into a program of special restorative training is not approved under the provisions of § 21.3306, a counseling psychologist or vocational rehabilitation counselor will place the case in discontinued status.
(b) Notification. In any case of discontinuance the Department of Veterans Affairs will:
(1) Notify the eligible person of the action taken, except that if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, VA will notify his or her parent or guardian (see § 21.3021(d)) of the action taken.
(2) Inform the eligible person of his or her potential right to a program of education, except that if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, VA will inform his or her parent or guardian (see § 21.3021(d)) of the eligible person’s potential right to a program of education.
(c) Effect of discontinuance. An eligible person who has been placed in discontinued status is precluded from any further pursuit of special restorative training until a Department of Veterans Affairs counseling psychologist or vocational rehabilitation counselor in the Veteran Readiness and Employment (VR&E) Division determines that the cause of the discontinuance has been removed.
Payments; Special Restorative Training
§ 21.3330 Payments.
(a) Payments will be made to the person designated to receive the payments under the provisions of § 21.3133(b).
(b) VA will pay special training allowance only for the period of the eligible person’s approved enrollment as certified by the counseling psychologist or vocational rehabilitation counselor. In no event, however, will VA pay such allowance for any period during which:
(1) The eligible person is not pursuing the prescribed course of special restorative training that has been determined to be full-time training with respect to his or her capacities; or
(2) An educational assistance allowance is paid.
(c) The provisions of § 21.3133(e) apply to the payment of special restorative training allowance.
§ 21.3331 Commencing date.
The commencing date of an authorization of a special training allowance will be the date of entrance or reentrance into the prescribed course of special restorative training, or the date the counseling psychologist or vocational rehabilitation counselor approved the course for the eligible person whichever is later. See also § 21.4131.
§ 21.3332 Discontinuance dates.
VA will discontinue special training allowance as provided in this section on the earliest date of the following:
(a) The ending date of the course.
(b) The ending date of the period of enrollment as certified by the counseling psychologist or vocational rehabilitation counselor.
(c) The ending date of the period of eligibility.
(d) The expiration of the eligible person’s entitlement.
(e) Date of interruption of course as determined by the counseling psychologist or vocational rehabilitation counselor under § 21.3305.
(f) Date of discontinuance under the applicable provisions of § 21.4135.
§ 21.3333 Rates.
(a) Rates. Special training allowance is payable at the following monthly rates, except as provided in paragraph (c) of this section.
(1) For special restorative training pursued after June 30, 2004, and before October 1, 2004:
| Course | Monthly rate | Accelerated charges |
|---|---|---|
| Special restorative training | $788.00 | If costs for tuition and fees average in excess of $247.00 per month, rate may be increased by such amount in excess of $247.00. |
(2) For special restorative training pursued after September 30, 2004, and before October 1, 2005:
| Course | Monthly rate | Accelerated charges |
|---|---|---|
| Special restorative training | $803.00 | If costs for tuition and fees average in excess of $251.00 per month, rate may be increased by such amount in excess of $251.00. |
(3) For special restorative training pursued after September 30, 2005, and before October 1, 2006:
| Course | Monthly rate | Accelerated charges |
|---|---|---|
| Special restorative training | $827.00 | If costs for tuition and fees average in excess of $258.00 per month, rate may be increased by such amount in excess of $258.00. |
(4) For special restorative training pursued after September 30, 2006, and before October 1, 2007:
| Course | Monthly rate | Accelerated charges |
|---|---|---|
| Special restorative training | $860.00 | If costs for tuition and fees average in excess of $268.00 per month, rate may be increased by such amount in excess of $268.00. |
(5) For special restorative training pursued after September 30, 2007, and before October 1, 2008:
| Course | Monthly rate | Accelerated charges |
|---|---|---|
| Special restorative training | $881.00 | If costs for tuition and fees average in excess of $274.00 per month, rate may be increased by such amount in excess of $274.00. |
(6) For special restorative training pursued after September 30, 2008:
| Course | Monthly rate | Accelerated charges |
|---|---|---|
| Special restorative training | $915.00 | If costs for tuition and fees average in excess of $284.00 per month, rate may be increased by such amount in excess of $284.00. |
(b) Accelerated charges. (1) VA may pay the additional monthly rate if the eligible person, or his or her parent or guardian (see § 21.3021(d)) if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, concurs in having his or her period of entitlement reduced by 1 day for each –
(i) $26.27 that the special training allowance exceeds the basic monthly rate of $803.00 for the period July 1, 2004, through September 30, 2004;
(ii) $26.77 that the special training allowance exceeds the basic monthly rate of $803.00 for the period October 1, 2004, through September 30, 2005;
(iii) $27.57 that the special training allowance exceeds the basic monthly rate of $827.00 for the period October 1, 2005, through September 30, 2006;
(iv) $28.67 that the special training allowance exceeds the basic monthly rate of $860.00 for the period October 1, 2006, through September 30, 2007;
(v) $29.37 that the special restorative training allowance exceeds the basic monthly rate of $881.00 for the period October 1, 2007, through September 30, 2008; and
(vi) $30.50 that the special restorative training allowance exceeds the basic monthly rate of $915.00 for months after September 30, 2008.
(2) VA will:
(i) Charge fractions of more than one-half day as 1 day;
(ii) Disregard fractions of one-half or less; and
(iii) Record charges when the eligible child is entered into training.
(c) Payments made to eligible persons in the Republic of the Philippines or to certain Filipinos. When the eligible person is pursuing training at an institution located in the Republic of the Philippines or when an eligible child’s entitlement is based on the service of a veteran in the Philippine Commonwealth Army, or as a Philippine Scout as defined in § 3.40(b), (c), or (d) of this chapter, payments of special training allowance made after December 31, 1994, will be made at the rate of 50 cents for each dollar authorized.
Special Assistance and Training
§ 21.3344 Special assistance for the educationally disadvantaged.
(a) Enrollment. VA may approve the enrollment of an eligible person in an appropriate course or courses at the secondary school level. This approval may be made only if the eligible person –
(1) Has not received a secondary school diploma (or an equivalency certificate);
(2) Needs additional secondary school education, remedial, refresher, or deficiency courses, to qualify for admission to an appropriate educational institution in a State in order to pursue a program of education; and
(3) Is to pursue the course or courses in a State.
(b) Measurement. VA will measure remedial, deficiency, or refresher courses offered at the secondary school level as provided in §§ 21.4270(a)(2) and 21.4272(k).
(c) Educational assistance. VA will authorize educational assistance at the monthly rates specified in § 21.3131.
(d) Entitlement charge. The provisions of § 21.3045 will determine whether VA will make a charge against the period of the entitlement of the eligible person because of enrollment in a course under the provisions of this section.
(e) Certifications. (1) Certifications of the eligible person’s need for deficiency or remedial courses in basic English language skills and mathematics skills may be made by:
(i) A VA counseling psychologist or vocational rehabilitation counselor in the Veteran Readiness and Employment (VR&E) Division;
(ii) The educational institution administering the course; or
(iii) The educational institution where the student has applied for admission.
(2) Certification of need for other refresher, remedial or deficiency course requirements are to be made by the educational institution –
(i) Administering the course which the eligible person is planning to enter; or
(ii) Where the eligible person has applied for admission.
(f) Basic skills. Basic English language courses or mathematics courses will be authorized when it is found by accepted testing methods that the eligible person is lacking in basic reading, writing, speaking, or essential mathematics.
Subpart D – Administration of Educational Assistance Programs
Administrative
(a) Except as otherwise provided, authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the Education Service, designated by him or her to make findings and decisions under 38 U.S.C. Chapters 34 and 36 and the applicable regulations, precedents and instructions, as to programs authorized by these paragraphs.
(b) Authority is delegated to the Under Secretary for Benefits and the Director, Education Service, to enter into agreements for the reimbursement of State approving agencies under § 21.4153.
(c) Authority is delegated to the Director, Education Service, to exercise the functions required of the Secretary for:
(1) Waiver of penalties for conflicting interests as provided by § 21.4005;
(2) Actions otherwise required of State approving agencies under § 21.4150(c);
(3) Approval of courses under § 21.4250(c)(2).
(d) The Under Secretary for Benefits is delegated responsibility for obtaining evidence of voluntary compliance for vocational rehabilitation, education and special restorative training to implement Title VI, Civil Rights Act of 1964. Authority is delegated to him or her and his or her designee to take any necessary action as to programs of vocational rehabilitation, education or special restorative training under 38 U.S.C. Chapters 31, 34, 35 and 36 for the purpose of securing evidence of voluntary compliance directly or through the agencies to whom the Secretary has delegated responsibility for various schools or training establishments to implement §§ 18.1 through 18.13 of this chapter.
(e) The Under Secretary for Benefits is delegated responsibility for obtaining evidence of voluntary compliance from recognized national organizations whose representatives are afforded space and office facilities in facilities under his or her jurisdiction.
(f) The Under Secretary for Benefits is delegated responsibility to enter into an agreement with the Federal Trade Commission to utilize, where appropriate, its services and facilities, consistent with its available resources, to carry out investigations and make determinations as to enrollment of an eligible veteran or eligible person in any course offered by an institution which utilizes advertising, sales, or enrollment practices of any type which are erroneous, deceptive, or misleading either by actual statement, omission, or intimation.
(g) Authority is delegated to the Executive Director, Veteran Readiness and Employment (VR&E) Service to exercise the functions required of the Secretary for approval of courses under § 21.4250(c)(1).
§ 21.4002 Finality of decisions.
(a) The decision of a duly constituted agency of original jurisdiction on which an action was predicated will be final and binding upon all field offices of the Department of Veterans Affairs as to conclusions based on evidence on file at that time and will not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 21.4003. (See §§ 19.192 and 19.183 of this chapter.)
(b) Current determinations of line of duty, character of discharge, relationship, and other pertinent elements of eligibility for a program of education or special restorative training, made by either an adjudicative activity or an insurance activity by application of the same criteria and based on the same facts are binding one upon the other in the absence of clear and unmistakable error.
§ 21.4003 Revision of decisions.
The revision of a decision on which an action was predicated will be subject to the following sections:
(a) Clear and unmistakable error, § 3.105(a) of this chapter;
(b) Difference of opinion, § 3.105(b) of this chapter;
(c) Character of discharge, § 3.105(c) of this chapter;
(d) Severance of service connection, § 3.105(d) of this chapter;
(e) Veteran no longer totally and permanently disabled, § 21.4135(o).
§ 21.4005 Conflicting interests.
For the purposes of this section, a person will be considered to be an “officer” of the State approving agency or VA when he or she has authority to exercise supervisory authority, and “educational institution” includes an organization or entity offering licensing or certification tests.
(a) A conflict of interest can cause the dismissal of a VA or State approving agency officer or employee and other adverse consequences. (1) An officer or employee of VA will be immediately dismissed from his or her office or employment, if while such an officer or employee he or she has owned any interest in, or received any wages, salary, dividends, profits, gratuities, or services from any educational institution operated for profit –
(i) In which a veteran or eligible person was pursuing a course of education under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36; or
(ii) Offering a licensing or certification test that is approved for payment of educational assistance under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35 to veterans, reservists, or eligible individuals who take that test.
(2) Except as provided in paragraph (a)(3) or (c) of this section, VA will discontinue payments under § 21.4153 to a State approving agency when the Secretary finds that any individual who is an officer or employee of a State approving agency has, while he or she was such an officer or employee, owned any interest in, or received any wages, salary, dividends, profits, gratuities, or services from any educational institution operated for profit –
(i) In which a veteran or eligible person was pursuing a course of education or training under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36; or
(ii) Offering a licensing or certification test that is approved for payment of educational assistance under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35 to veterans, reservists, or eligible individuals who take that test.
(3) VA will not discontinue payments to a State approving agency under paragraph (a)(2) of this section if the State approving agency, after learning that it has any officer or employee described in that paragraph, acts without delay to end the employment of that individual.
(4) If VA discontinues payments to a State approving agency pursuant to paragraph (a)(2) of this section, VA will not resume these payments while such an individual is an officer or employee of the:
(i) State approving agency;
(ii) State Department of Veterans Affairs; or
(iii) State Department of Education.
(5) A State approving agency will not approve any course offered by an educational institution operated for profit and, if any such course has been approved, will disapprove each such course, if it finds that any officer or employee of the Department of Veterans Affairs, or the State approving agency owns an interest in, or receives any wages, salary, dividends, profits, gratuities, or service from, such educational institution.
(6) If a State approving agency finds that any officer or employee of VA or of the State approving agency owns an interest in, or receives wages, salary, dividends, profits, gratuities, or services from an organization or entity, operated for profit, that offers licensing or certification tests, the State approving agency:
(i) Will not approve any licensing or certification test that organization or entity offers; and
(ii) Will withdraw approval of any licensing or certification test that organization or entity offers.
(7) The Secretary may, after reasonable notice, and public hearings if requested, waive in writing the application of this paragraph in the case of any officer or employee of the Department of Veterans Affairs or of a State approving agency, if it is found that no detriment will result to the United States or to veterans or eligible persons by reason of such interest or connection of such officer or employee.
(b) Waiver. (1) Where a request is made for waiver of application of paragraph (a)(1) of this section, it will be considered that no detriment will result to the United States or to veterans or eligible persons by reason of such interest or connection of such officer or employee of the Department of Veterans Affairs, if the officer or employee:
(i) Acquired his or her interest in the educational institution by operation of law, or before the statute became applicable to the officer or employee, and his or her interest has been disposed of and his or her connection discontinued, or
(ii) Meets all of the following conditions:
(A) His or her position involves no policy determinations, at any administrative level, having to do with matters pertaining to payment of educational assistance allowance, or special training allowance.
(B) His or her position has no relationship with the processing of any veteran’s or eligible person’s application for education or training.
(C) His or her position precludes him or her from taking any adjudicative action on individual applications for education or training.
(D) His or her position does not require him or her to perform duties involved in the investigation of irregular actions on the part of educational institutions or veterans or eligible persons in connection with 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 33, 35 or 36.
(E) His or her position is not connected with the processing of claims by, or payments to, schools, or their students enrolled under the provisions of 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 33, 35 or 36.
(F) His or her position is not connected in any way with the inspection, approval, or supervision of educational institutions desiring to train veterans or eligible persons or to offer a licensing or certification test; or with the processing of claims by or making payments to veterans and eligible persons for taking an approved licensing or certification test.
(2) Where a request is made for waiver of application of paragraph (a) (2) of this section, it will be considered that no detriment will result to the United States or to veterans or eligible persons by reason of such interest or connection of such officer or employee of a State approving agency, if the officer or employee:
(i) Acquired his or her interest in the educational institution by operation of law, or before the statute became applicable to the officer or employee, and his or her interest has been disposed of and his or her connection discontinued, or
(ii) Meets all of the following conditions:
(A) His or her position does not require him or her to perform duties involved in the investigation of irregular actions on the part of educational institutions or veterans or eligible persons in connection with 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 33, 35 or 36.
(B) His or her work is not connected in any way with the inspection, approval, or supervision of educational institutions desiring to train veterans or eligible persons, or desiring to offer licensing or certification tests to veterans or eligible persons.
(c) Authority. (1) Authority is delegated to the Director, Education Service, and to the facility head in the cases of VA employees under his or her jurisdiction, to waive the application of paragraph (a)(1) of this section in the case of any VA employee who meets the criteria of paragraph (b)(1) of this section, and to deny requests for a waiver which do not meet those criteria. If the circumstances warrant, a waiver request may be submitted to the Secretary for a decision.
(2) Authority is delegated to the Director, Education Service, in cases of State approving agency employees to waive the application of paragraph (a)(2) of this section in the case of anyone who meets the criteria of paragraph (b)(2) of this section, and to deny requests for a waiver which do not meet those criteria. If the circumstances warrant, a waiver request may be submitted to the Secretary for a decision.
(3) Authority is reserved to the Secretary to waive the requirement of paragraphs (a) (1) and (2) of this section in the case of an officer of the Department of Veterans Affairs or a State approving agency and in the case of any employee of either who does not meet the criteria of paragraph (b) of this section.
(d) Notice when VA does not grant a requested waiver. When VA has denied a request for waiver of application of paragraph (a)(1) or (a)(2) of this section, VA will immediately notify the State approving agency and the educational institution:
(1) That the approval of courses or licensing and certification tests offered by the educational institution must be withdrawn;
(2) The reasons for the withdrawal of approval; and
(3) The conditions that will permit the courses or such tests to be approved again.
(e) Notice to veterans, reservists, and eligible individuals. (1) The veteran or eligible person will be notified in writing sent to his or her latest address of record when, in circumstances involving a finding of conflicting interests:
(i) The course or courses are disapproved by the State approving agency, or
(ii) The State approving agency fails to disapprove the course or courses within 15 days after the date of written notice to the agency, and no waiver has been requested, or
(iii) Waiver has been denied.
(2) The veteran or eligible person will be informed that he or she may apply for enrollment in an approved course in another educational institution, but that in the absence of such transfer, educational assistance allowance payments will be discontinued effective the date of discontinuance of the course, or the 30th day following the date of such letter, whichever is earlier.
§ 21.4006 False or misleading statements.
(a) Payments may not be based on false statements. Except as provided in this section payments may not be authorized based on a claim where it is found that the school or any person has willfully submitted a false or misleading claim, or that the veteran or eligible person with the complicity of the school or other person has submitted such a claim. A complete report of the facts will be made to the State approving agency, and if in order to the Attorney General of the United States.
(1) Where it is determined prior to payment that a certification or claim is false or misleading, payment will be authorized for only that portion of the claim to which entitlement is established on the basis of other evidence of record.
(2) When the Department of Veterans Affairs discovers that a certification or claim is false after it has released payment, the Department of Veterans Affairs will establish an overpayment for only that portion of the claim to which the claimant was not entitled.
(b) Effect of false statements on subsequent payments. A claimant’s false or misleading statements are not a bar to payments based on further training.
(c) Forfeiture. The provisions of this section do not apply when forfeiture of all rights has been or may be declared under the provisions of § 21.4007.
§ 21.4007 Forfeiture.
The rights of a veteran or eligible person to receive educational assistance allowance or special training allowance are subject to forfeiture under the provisions of §§ 3.900, 3.901 (except paragraph (c)), 3.902 (except paragraph (c)), 3.903, 3.904, 3.905 and 19.2 of this chapter.
§ 21.4008 Prevention of overpayments.
(a) Prevention of overpayments to veterans and eligible persons enrolled in educational institutions. When approval of a course may be withdrawn, and overpayments may exist or may be created, VA may suspend further payments to veterans and eligible persons enrolled in the educational institution offering the course until the question of withdrawing approval is resolved. See § 21.4210.
(b) Prevention of overpayments to veterans and eligible persons taking licensing and certification tests. When approval of a licensing or certification test may be withdrawn, and overpayments may exist or may be created, VA may suspend payments to veterans and eligible persons taking that test until the question of withdrawing approval is resolved. See § 21.4210.
§ 21.4009 Waiver or recovery of overpayments.
For the purposes of this section, “educational institution” includes an organization or entity offering licensing or certification tests.
(a) General. (1) The amount of the overpayment of educational assistance allowance or special training allowance paid to a veteran or eligible person constitutes a liability of that veteran or eligible person.
(2) The amount of the overpayment of educational assistance allowance or special training allowance paid to a veteran or eligible person constitutes a liability of the education institution if the Department of Veterans Affairs determines that the overpayment was made as the result of willful or negligent:
(i) Failure of the educational institution to report, as required by §§ 21.4203 and 21.4204, discontinuance or interruption of a course by a veteran, reservist or eligible person, or
(ii) False certification by the educational institution.
(3) If it appears that the falsity or misrepresentation was deliberate, the Department of Veterans Affairs may not pursue administrative collection pending a determination whether the matter should be referred to the Department of Justice for possible civil or criminal action. However, the Department of Veterans Affairs may recover the amount of the overpayment from the educational institution by administrative collection procedure when the Department of Veterans Affairs determines the false certification or misrepresentation resulted from an administrative error or a misstatement of fact and that no criminal or civil action is warranted.
(4) If the Department of Veterans Affairs recovers any part of the overpayment from the educational institution, it may reimburse the educational institution, if the Department of Veterans Affairs subsequently collects the overpayment from a veteran or eligible person. The reimbursement –
(i) Will be made when the total amount collected from the educational institution and from the veterans and eligible persons (less any amount applied toward marshal fees, court costs, administrative cost of collection and interest) exceeds the total amount for which the educational institution is liable, and
(ii) Will be equal to the excess.
(5) This paragraph does not preclude the imposition of any civil or criminal liability under this or any other law.
(b) Reporting. (1) If a school is required to make periodic or other certifications, the Department of Veterans Affairs may consider the following in determining whether a school is potentially liable for an overpayment:
(i) The school’s failure to report, or to report timely facts which resulted in an overpayment, or
(ii) The school’s submission of an incorrect certification as to fact.
(2) In either instance the Department of Veterans Affairs will consider other pertinent factors such as:
(i) Allowing for occasional clerical error or occasional administrative error:
(ii) The school’s past reliability in reporting;
(iii) The adequacy of the school’s reporting system; and
(iv) The extent of noncompliance with reporting requirements.
(c) Committee on School Liability. (1) Each VA Regional Processing Office shall have a Committee on School Liability. For the purposes of this section, the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction for educational institutions located in the Philippines.
(2) The Secretary delegates to each Committee on School Liability, and to any panel that the chairperson of the Committee may designate and draw from the Committee, the authority to find whether an educational institution is liable for an overpayment.
(d) Initial decision. (1) The Education Officer of the VA Regional Processing Office of jurisdiction, or the Service Center Manager when the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction, will decide whether there is evidence that would warrant a finding that an educational institution is potentially liable for an overpayment.
(2) Following each finding of potential liability, the Finance Officer of the VA Regional Processing Office of jurisdiction will notify the educational institution in writing of VA’s intent to apply the liability provisions of paragraph (a) of this section. The notice will –
(i) Identify the students who were overpaid;
(ii) Identify the veterans and eligible persons who took the licensing or certification test and were overpaid;
(iii) Set out in the case of each student, or in the case of each veteran or eligible person who took the test, the educational institution’s actions or omissions which resulted in the finding that the educational institution was potentially liable for the overpayment; and
(iv) State that VA will determine liability on the basis of the evidence of record unless the VA Regional Processing Office of jurisdiction receives additional evidence or a request for a hearing within 30 days of the date the educational institution received the notice.
(e) Hearings. An educational institution is entitled to a hearing before a panel drawn from the Committee on School Liability before a decision is made as to whether it is liable for an overpayment. Every hearing will be preceded by a prehearing conference unless the conference is waived by the educational institution. The Committee on School Liability will consider all evidence and testimony presented at the hearing.
(f) Extent of liability. Waiver of collection of an overpayment as to a veteran, reservist, or eligible person will not relieve the educational institution of liability for the overpayment. Recovery in whole or in part from the veteran, reservist, or eligible person will limit such liability accordingly. If an overpayment has been recovered from the educational institution and the veteran, reservist, or eligible person subsequently repays the amount in whole or in part, the amount repaid will be reimbursed to the educational institution.
(g) Notice to educational institution. The educational institution shall be notified in writing of the decision of the Committee on School Liability. If the educational institution is found liable for an overpayment, the educational institution also will be notified of the right to appeal the decision to the Central Office School Liability Appeals Board within 60 days from the date of the letter to the educational institution containing notice of the decision. The 60-day time limit may be extended to 90 days at the discretion of the chairperson of the Committee on School Liability. The appeal must be in writing setting forth fully the alleged errors of fact and law. If an appeal is not received within the 60-day time limit, the Committee decision is final.
(h) Appeals. An appeal will be forwarded to Central Office where it will be considered by the School Liability Appeals Board. The Board’s decision will serve as authority for instituting collection proceedings, if appropriate, or for discontinuing collection proceedings instituted on the basis of the original decision of the Committee on School Liability in any case where the Board reverses a decision made by the Committee that the educational institution is liable.
(i) Review. Review by the School Liability Appeals Board is limited to the issues raised by the educational institution and shall be on the record and not de novo in character. The Board may affirm, modify or reverse a decision of the Committee on School Liability or may remand an appeal for further consideration by the appropriate Committee on School Liability. If new and material evidence is discovered while the School Liability Appeals Board is considering a case, the Board may remand the case to the appropriate Committee on School Liability.
(j) Finality of decisions. The School Liability Appeals Board has authority to act for the Secretary in deciding appeals concerning an educational institution’s liability for an overpayment. There is no right of additional administrative appeal of a decision of the School Liability Appeals Board.
General
§ 21.4020 Two or more programs.
(a) Limit on training under two or more programs. The aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent):
(1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended:
(2) Title II of the Veterans’ Readjustment Assistance Act of 1952;
(3) The War Orphans’ Educational Assistance Act of 1956;
(4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36;
(5) 10 U.S.C. chapters 106a, 1606, and 1607;
(6) Section 903 of the Department of Defense Authorization Act, 1981,
(7) The Hostage Relief Act of 1980, and
(8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.
(b) Limit on combining assistance received under Chapter 31 with assistance under another program. No person may receive assistance under Chapter 31, Title 38 U.S.C. in combination with any provisions of law listed in paragraph (a) of this section in excess of 48 months (or the part-time equivalent) unless the Department of Veterans Affairs determines that additional months of benefits under Chapter 31 are necessary to accomplish the purpose of the veteran’s rehabilitation program.
§ 21.4022 Nonduplication – programs administered by VA.
A veteran, reservist, or eligible individual, who is eligible for educational assistance allowance or subsistence allowance under more than one of the provisions of law listed in this section, whether based on his or her own service or the service of another person, cannot receive such benefits concurrently. The individual must choose under which program he or she will receive benefits for the particular period(s) during which education or training is to be pursued. The individual may choose to receive benefits under another program (other than 38 U.S.C. chapter 33) at any time, but not more than once in a calendar month. The individual may choose to receive benefits under 38 U.S.C. chapter 33 at any time, but not more than once during a certified term, quarter, or semester.
(a) 38 U.S.C. 30 (Montgomery GI Bill – Active Duty);
(b) 38 U.S.C. 31 (Veteran Readiness and Employment (VR&E) Program);
(c) 38 U.S.C. 32 (Post-Vietnam Era Veterans’ Educational Assistance);
(d) 38 U.S.C. 33 (Post-9/11 GI Bill)
(e) 38 U.S.C. 35 (Survivors’ and Dependents’ Educational Assistance);
(f) 10 U.S.C. 1606 (Montgomery GI Bill – Selected Reserve);
(g) 10 U.S.C. 1607 (Reserve Educational Assistance Program);
(h) 10 U.S.C. 106a (Educational Assistance Test Program);
(i) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(j) The Hostage Relief Act of 1980 (Pub. L. 96-449), 5 U.S.C. 5661 note);
(k) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399).
Payments; Educational Assistance Allowance
§ 21.4131 Commencing dates.
VA will determine under this section the commencing date of an award or increased award of educational assistance provided pursuant to subpart C or G. When more than one paragraph in this section applies, VA will award educational assistance using the latest of the applicable commencing dates.
(a) Entrance or reentrance including change of program or educational institution: individual eligible under 38 U.S.C. chapter 32. When an eligible veteran or servicemember enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) For other than licensing or certification tests. (i) If the award is the first award of educational assistance for the program of education the veteran or servicemember is pursuing, the commencing date of the award of educational assistance is the latest of:
(A) The date the educational institution certifies under paragraph (b) or (c) of this section;
(B) One year before the date of claim as determined by § 21.1029(b);
(C) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or
(ii) If the award is the second or subsequent award of educational assistance for the program of education the veteran or servicemember is pursuing, the effective date of the award of educational assistance is the later of –
(A) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(B) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(2) For licensing or certification tests. VA will award educational assistance for the cost of a licensing or certification test only when the veteran or servicemember takes such test –
(i) While the test is approved under 38 U.S.C. chapter 36;
(ii) While the veteran or servicemember is eligible for educational assistance under subpart G; and
(iii) No more than one year before the date VA receives a claim for reimbursement of the cost of the test.
(b) Certification by school – the course or subject leads to a standard college degree. (1) When the student enrolls in a course offered by independent study, the commencing date of the award or increased award of educational assistance will be the date the student began pursuit of the course according to the regularly established practices of the educational institution.
(2) Except as provided in paragraphs (b)(3), (b)(4) and (b)(5) of this section when a student enrolls in a resident course or subject, the commencing date of the award or increased award of educational assistance will be the first scheduled date of classes for the term, quarter or semester in which the student is enrolled.
(3) When the student enrolls in a resident course or subject whose first scheduled class begins after the calendar week when, according to the school’s academic calendar, classes are scheduled to commence for the term, quarter, or semester, the commencing date of the award or increased award of educational assistance allowance will be the actual date of the first class scheduled for that particular course or subject.
(4) When a student enrolls in a resident course or subject, the commencing date of the award will be the date the student reports to the school provided that –
(i) The published standards of the school require the student to register before reporting, and
(ii) The published standards of the school require the student to report no more than 14 days before the first scheduled date of classes for the term, quarter or semester for which the student has registered, and no later than the first scheduled date of classes for the term, quarter or semester for which the student has registered.
(5) When the student enrolls in a resident course or subject and the first day of classes is more than 14 days after the date of registration, the commencing date of the award or the increased award of educational assistance will be the first day of classes.
(c) Certification by school or establishment – course does not lead to a standard college degree. (1) Residence school: See paragraph (b) of this section.
(2) Correspondence school: Date first lesson sent or date of affirmance whichever is later.
(3) Job training: First date of employment in training position.
(d) Entrance or reentrance including change of program or educational institution: individual eligible under 38 U.S.C. chapter 35. When a person eligible to receive educational assistance under 38 U.S.C. chapter 35 enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) For other than licensing or certification tests. (i) If the award is the first award of educational assistance for the program of education the eligible person is pursuing, the commencing date of the award of educational assistance is the latest of:
(A) The beginning date of eligibility as determined under § 21.3041 or under § 21.3046(a) or (b), whichever is applicable;
(B) One year before the date of claim as determined by § 21.1029(b);
(C) The date the educational institution certifies under paragraph (b) or (c) of this section;
(D) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or
(ii) If the award is the second or subsequent award of educational assistance for that program, the effective date of the award of educational assistance is the later of –
(A) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(B) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(2) For licensing or certification tests. VA will award educational assistance for the cost of a licensing or certification test only when the eligible person takes such test –
(i) While the test is approved under 38 U.S.C. chapter 36;
(ii) While he or she is eligible for educational assistance under subpart C; and
(iii) No more than one year before the date VA receives a claim for reimbursement of the cost of the test.
(e) Adjusted effective date for award of educational assistance under 38 U.S.C. chapter 35 based on an original claim. When determining the commencing date under § 21.4131(d)(1), the Secretary will consider an eligible person’s application for Survivors’ and Dependents’ Educational Assistance under 38 U.S.C. chapter 35 as having been filed on his or her eligibility date if –
(1) The eligibility date is more than 1 year before the date of the initial rating decision that establishes either:
(i) The veteran’s death is service-connected, or
(ii) The veteran has a P&T disability;
(2) The eligible person files his or her original application for benefits under 38 U.S.C. chapter 35 with VA within 1 year of the initial rating decision;
(3) The eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than 1 year before the date VA receives his or her original claim;
(4) VA either:
(i) Received the original application on or after November 1, 2000; or
(ii) Received the original application and, as of November 1, 2000, either –
(A) Had not acted on it; or
(B) Had denied it in whole or in part, but the claimant remained entitled to pursue available administrative and judicial remedies as to the denial; and
(5) The eligible person would have been eligible to educational assistance under 38 U.S.C. chapter 35 if he or she had filed a claim on his or her eligibility date.
(f) Liberalizing laws and Department of Veterans Affairs issues. In accordance with facts found, but not earlier than the effective date of the act or administrative issue.
(g) Correction of military records. Eligibility of a veteran or eligible person may arise as the result of correction or modification of military records under 10 U.S.C. 1552, or a change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other competent military authority. In these cases the commencing date of educational assistance allowance will be in accordance with the facts found, but not earlier than the date the change, correction or modification was made by the service department.
(h) Individuals in a penal institution. If a veteran or eligible person is paid a reduced rate of educational assistance or no educational assistance under § 21.3132 (a) or (b) or § 21.5139, the rate will be increased or benefits will commence effective the earlier of the following dates:
(1) The date the tuition and fees are no longer being paid under another Federal program, or a State or local program, or
(2) The date of the release from the prison or jail.
(i) Fugitive felons. An award of educational assistance allowance to an otherwise eligible veteran or person will begin effective the date the warrant for the arrest of the felon is cleared by –
(1) Arrest;
(2) Surrendering to the issuing authority;
(3) Dismissal; or
(4) Court documents (dated after the warrant for the arrest of the felon) showing the individual is no longer a fugitive.
(j) [Reserved]
§ 21.4135 Discontinuance dates.
The effective date of reduction or discontinuance of educational assistance allowance will be as specified in this section. If more than one type of reduction or discontinuance is involved, the earliest date will control.
(a) Death of veteran or eligible person. (1) If the veteran or eligible person receives an advance payment pursuant to 38 U.S.C. 3680(d) and dies before the period covered by the advance payment ends, the discontinuance date of educational assistance shall be the last date of the period covered by the advance payment.
(2) In all other cases if the veteran or eligible person dies while pursuing a program of education, the discontinuance date of educational assistance shall be the last date of attendance.
(b) Election to receive educational assistance under the Montgomery GI Bill – Active Duty. If a veteran makes a valid election, as provided in § 21.7045(d), to receive educational assistance under the Montgomery GI Bill – Active Duty in lieu of educational assistance under the Post-Vietnam Era Veterans’ Educational Assistance Program, the discontinuance date of educational assistance under the Post-Vietnam Era Veterans’ Educational Assistance Program shall be the date on which the election was made pursuant to procedures described in § 21.7045(d)(2).
(c)-(d) [Reserved]
(e) Course discontinued; course interrupted; course terminated; course not satisfactorily completed or withdrawn from. (1) If the individual receives all nonpunitive grades, or withdraws from all courses other than because of being ordered to active duty, and no mitigating circumstances are found, VA will terminate the individual’s educational assistance allowance effective the first date of the term in which the withdrawal occurs.
(2) If the individual withdraws from all other courses other than courses in paragraph (e)(3) of this section and with mitigating circumstances, or withdraws from all courses such that a punitive grade is or will be assigned for those courses:
(i) Residence training: Last date of attendance.
(ii) Independent study: Official date of change in status under the practices of the institution.
(3) If the individual withdraws from correspondence, flight, farm cooperative, cooperative or job training, benefits will be terminated effective:
(i) Correspondence training: Date last lesson is serviced.
(ii) Flight training: Date of last instruction.
(iii) Job training: Date of last training.
(iv) Farm cooperative training: Date of last class attendance.
(v) Cooperative training: Date of last training.
(f) Discontinued by VA (§§ 21.4215, 21.4216). If VA discontinues payments of educational assistance as provided by §§ 21.4215(d) and 21.4216, the effective date of discontinuance will be as follows:
(1) The date on which payments first were suspended by the Director of a VA facility as provided in § 21.4210, if the discontinuance were preceded by such a suspension.
(2) End of the month in which the decision to discontinue is effective pursuant to § 21.4215(d), if the Director of a VA facility did not suspend payments prior to the discontinuance.
(g) Unsatisfactory progress, conduct or attendance § 21.4277. The date the veteran’s or eligible person’s enrollment is discontinued by the school or the date determined under § 21.4277, whichever is earlier.
(h) Required certifications not received after certification of enrollment (§§ 21.4203 and 21.4204). (1) If required certification of attendance of a veteran or eligible person enrolled in a course not leading to a standard college degree is not timely received, payments will be terminated date of last certification. If certification is later received, adjustment will be made based on facts found.
(2) If verification of enrollment and certificate of delivery of the check is not received within 60 days, in the case of an advance payment, the actual facts will be determined and adjustment made, if required, on the basis of facts found. If student failed to enroll, termination will be effective the beginning date of the enrollment period.
(i) False or misleading statements. See § 21.4006.
(j) Disapproval by State approving agency (§ 21.4259(a)). If a State approving agency disapproves a course, the date of discontinuance of payments to those receiving educational assistance while enrolled in the course will be as follows:
(1) The date on which payments first were suspended by the Director of a VA facility as provided in § 21.4210, if disapproval were preceded by such a suspension.
(2) End of the month in which disapproval is effective or notice of disapproval is received in the Department of Veterans Affairs, whichever is later, provided that the Director of a Department of Veterans Affairs facility did not suspend payments prior to the disapproval.
(k) Disapproval by Department of Veterans Affairs (§§ 21.4215, 21.4259(c)). If VA disapproves a course, the date of discontinuance of payments to those receiving educational assistance while enrolled in the course will be as follows:
(1) Date on which payments first were suspended by the Director of a VA facility as provided in § 21.4210, if disapproval were preceded by such a suspension.
(2) End of the month in which disapproval occurred, provided that the Director of a Department of Veterans Affairs facility did not suspend payments prior to the disapproval.
(l) Conflicting interests (not waived) (§ 21.4005). Thirty days after date of letter notifying veteran or eligible person, unless terminated earlier for other reason.
(m) Incarceration in prison or penal institution for conviction of a felony. (1) The provisions of this paragraph apply to a veteran or eligible person whose educational assistance must be discontinued or who becomes restricted to payment of educational assistance allowance at a reduced rate under § 21.3132(a) or (b) or § 21.5139.
(2) The reduced rate or discontinuance will be effective the latest of the following dates.
(i) The first day on which all or part of the veteran’s or eligible person’s tuition and fees were paid by a Federal, State or local program,
(ii) The date the veteran or eligible person is incarcerated in prison or penal institution, or
(iii) The commencing date of the award as determined by § 21.4131.
(n) Fugitive felons: veterans eligible under 38 U.S.C. chapter 32. VA will not award educational assistance allowance to an otherwise eligible veteran for any period after December 26, 2001, during which the veteran is a fugitive felon. The date of discontinuance of an award of educational assistance allowance to a veteran who is a fugitive felon is the later of –
(1) The date of the warrant for the arrest of the felon; or
(2) December 27, 2001.
(o) [Reserved]
(p) Error; payee’s or administrative. (1) Effective date of award or day preceding act, whichever is later, but not prior to the date entitlement ceased, on an erroneous award based on an act of commission or omission by a payee or with his or her knowledge.
(2) Date of last payment on an erroneous award based solely on administrative error by VA or error in judgment by VA.
(q) Fraud; forfeiture resulting (§ 21.4007). Beginning date of award or day preceding date of fraudulent act whichever is later.
(r) Treasonable acts or subversive activities; forfeiture (§ 21.4007). Beginning date of award or date preceding date of commission of treasonable act or subversive activities for which convicted, whichever is later.
(s) Reduction in rate of pursuit of course (§ 21.4270). (1) VA will reduce an individual’s educational assistance allowance effective the first date of the term in which the individual reduces training by withdrawing from part of a course, if the reduction occurs at the beginning of the term.
(2) VA will reduce an individual’s educational assistance allowance effective the earlier of the end of the month or end of the term in which an individual reduces training by withdrawing from part of a course when:
(i) The reduction does not occur at the beginning of the term;
(ii) The individual received a lump-sum payment for the quarter, semester, term or other enrollment period during which he or she reduced training; and
(iii) There are mitigating circumstances, or the individual receives a punitive grade for the portion of the course from which he or she withdrew.
(3) VA will reduce an individual’s educational assistance allowance effective the date on which an individual reduces training when:
(i) The reduction does not occur at the beginning of the term;
(ii) The individual did not receive a lump-sum payment for the quarter, semester, term or other enrollment period during which he or she reduced training; and
(iii) There are mitigating circumstances, or the individual receives a punitive grade for the portion of the course from which he or she withdrew.
(4) If the individual reduces training by withdrawing from a part of a course and the withdrawal does not occur because the individual was ordered to active duty; there are no mitigating circumstances; and the individual receives a nonpunitive grade from that portion of the course from which he or she withdrew; VA will reduce the individual’s educational assistance effective the later of the following:
(i) The first date of enrollment of the term in which the reduction occurs; or
(ii) December 1, 1976. See paragraphs (e) and (w) of this section also.
(5) An individual who enrolls in several subjects and reduces his or her rate of pursuit by completing one or more of them while continuing training in others, may receive an interval payment based on the subjects completed, if the requirements of § 21.4138(f) of this part are met. If those requirements are not met, VA will reduce the individual’s educational assistance allowance effective the date the subject or subjects were completed.
(t) Change in law or Department of Veterans Affairs issue, or interpretation. See § 3.114(b) of this chapter.
(u) Except as otherwise provided. On basis of facts found.
(v) [Reserved]
(w) Nonpunitive grade assigned without a withdrawal from courses. (1) If an individual receives a nonpunitive grade for a particular course for any reason other than a withdrawal from it, VA will reduce the individual’s educational assistance allowance effective the last date of attendance when mitigating circumstances are found.
(2) If an individual receives a nonpunitive grade in a particular course for any reason other than a withdrawal from it, and there are no mitigating circumstances, VA will reduce his or her educational assistance effective the later of the following:
(i) The first date of enrollment for the term in which the grade applies, or
(ii) December 1, 1976. See paragraphs (e) and (s) of this section.
(x) Independent study course loses accreditation. Except as otherwise provided in § 21.4252(g), if the veteran or eligible person is enrolled in a course offered in whole or in part by independent study, and the course loses its accreditation (or the educational institution offering the course loses its accreditation), the date of reduction or discontinuance will be the effective date of the withdrawal of accreditation by the accrediting agency.
(y)-(aa) [Reserved]
Special restorative training. See § 21.3332.
§ 21.4136 Withdrawals or nonpunitive grades may result in nonpayment.
(a) General. VA will not pay benefits to an individual for a course from which the individual withdraws or receives a nonpunitive grade which is not used in computing the requirements for graduation unless:
(1) The individual withdraws because he or she is ordered to active duty; or
(2) All of the following criteria are met:
(i) There are mitigating circumstances;
(ii) The individual submits a description of the circumstances in writing to VA either within one year from the date VA notifies the individual that he or she must submit the mitigating circumstances or at a later date if the individual is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the description of the mitigating circumstances; and
(iii) The individual submits evidence supporting the existence of mitigating circumstances within one year of the date that evidence is requested by VA, or at a later date if the individual is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the evidence supporting the existence of mitigating circumstances.
(b) Representative mitigating circumstances. The following circumstances, which are not all inclusive, are representative of those that VA considers to be mitigating provided they prevent the individual from pursuing the program of education continuously:
(1) An illness of the individual;
(2) An illness or death in the individual’s family;
(3) An unavoidable geographical transfer resulting from the individual’s employment;
(4) An unavoidable change in the individual’s conditions of employment;
(5) Immediate family or financial obligations beyond the control of the individual that require him or her to suspend pursuit of the program of education to obtain employment;
(6) Discontinuance of the course by the school;
(7) Unanticipated active duty for training;
(8) Unanticipated difficulties in caring for the individual’s child or children.
(c) Failure to complete a course for the educationally disadvantaged. If the individual fails to satisfactorily complete a course under 38 U.S.C. 3491(a) without fault, VA will consider the circumstances that caused the failure to be mitigating. This will be the case even if the circumstances were not so severe as to preclude continuous pursuit of a program of education.
(d) Withdrawals after May 31, 1989. In the first instance of a withdrawal after May 31, 1989, from a course or courses for which the individual received educational assistance under 38 U.S.C. chapter 32, VA will consider that mitigating circumstances exist with respect to courses totaling not more than six semester hours or the equivalent, and paragraphs (a)(2)(ii) and (a)(2)(iii) of this section will not apply.
(e) Withdrawals during a drop-add period. If the individual withdraws from a course during a drop-add period, VA will consider the circumstances that caused the withdrawal to be mitigating, and paragraphs (a)(2)(ii) and (a)(2)(iii) of this section will not apply.
§ 21.4138 Certifications and release of payments.
For the purposes of this section, the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction for educational assistance allowance claims processed under 38 U.S.C. chapter 35 for educational institutions located in the Philippines.
(a) Advance payments. (1) VA will make payments of educational assistance in advance when:
(i) The veteran, servicemember, reservist, or eligible person has specifically requested such a payment;
(ii) The student is enrolled for half time or more;
(iii) The educational institution at which the veteran, servicemember, reservist, or eligible person is accepted or enrolled has agreed to and can satisfactorily carry out the provisions of 38 U.S.C. 3680(d)(4)(B) and (C) and (5) pertaining to receipt, delivery, or return of checks and certifications of delivery and enrollment;
(iv) The Director of the VA Regional Processing Office of jurisdiction has not acted under paragraph (a)(4) of this section to prevent advance payments being made to the veteran’s, servicemember’s, reservist’s, or eligible person’s educational institution;
(v) There is no evidence in the veteran’s, servicemember’s, reservist’s, or eligible person’s claim file showing that he or she is not eligible for an advance payment;
(vi) The period for which the veteran, servicemember, reservist, or eligible person has requested a payment either –
(A) Is preceded by an interval of nonpayment of 30 days or more; or
(B) Is the beginning of a school year that is preceded by a period of nonpayment of 30 days or more; and
(vii) The educational institution or the veteran, servicemember, reservist, or eligible person has submitted the certification required by § 21.7151.
(2) The amount of the advance payment to a veteran, reservist, or eligible person is the educational assistance for the month or fraction thereof in which the term or course will begin plus the educational assistance for the following month. The amount of the advance payment to a servicemember is the amount payable for the entire term, quarter, or semester, as applicable.
(3) VA will mail advance payments to the educational institution for delivery to the veteran, servicemember, reservist, or eligible person. The educational institution will not deliver the advance payment check more than 30 days in advance of the first date of the period for which VA makes the advance payment.
(4) The Director of the VA Regional Processing Office of jurisdiction may direct that advance payments not be made to individuals attending an educational institution if:
(i) The educational institution demonstrates an inability to comply with the requirements of paragraph (a)(3) of this section;
(ii) The educational institution fails to provide adequately for the safekeeping of the advance payment checks before delivery to the veteran, servicemember, reservist, or eligible person or return to VA; or
(iii) The Director determines, based on compelling evidence, that the educational institution has demonstrated its inability to discharge its responsibilities under the advance payment program.
(b) Lump-sum payments. A lump-sum payment is a payment of all educational assistance due for an entire quarter, semester, or term. VA will make a lump-sum payment to:
(1) A veteran or servicemember pursuing a program of education at less than the half-time rate under 38 U.S.C. chapter 30;
(2) A servicemember pursuing a program of education at the half-time rate or greater under 38 U.S.C. chapter 30, provided that VA did not make an advance payment to the servicemember for the term for which a lump-sum payment would otherwise be due; and
(3) An eligible person pursuing a program of education at less than the half-time rate under 38 U.S.C. chapter 35.
(c)-(d) [Reserved]
(e) Other payments. An individual must be pursuing a program of education in order to receive payments. To ensure that this is the case the provisions of this paragraph must be met.
(1) VA will pay educational assistance to an individual (other than one pursuing a program of apprenticeship or other on-job training or a correspondence course, one who qualifies for an advance payment or one who qualifies for a lump-sum payment) only after –
(i) The educational institution has certified his or her enrollment as provided in § 21.4203; and
(ii) VA has received from the individual a verification of the individual’s enrollment or verification of pursuit and continued enrollment, as appropriate. Generally, this verification will be required monthly, resulting in monthly payments.
(2) VA will pay educational assistance to an individual pursuing a program of apprenticeship or other on-job training only after –
(i) The training establishment has certified his or her enrollment in the training program as provided in § 21.4203; and
(ii) VA has received from the training establishment a certification of hours worked.
(3) VA will pay educational assistance to an individual who is pursuing a correspondence course only after –
(i) The educational institution has certified his or her enrollment;
(ii) VA has received from the individual a certification as to the number of lessons completed and serviced by the educational institution; and
(iii) VA has received from the educational institution a certification or an endorsement on the individual’s certificate, as to the number of lessons completed by the individual and serviced by the educational institution.
(f) Payment for intervals and temporary school closings. VA may authorize payment for an interval or for a temporary school closing that occurs within a certified enrollment period. If a school closing that is or may be temporary occurs during an interval, VA will apply any applicable provisions in paragraphs (f)(1) through (f)(5) of this section concerning intervals and in paragraph (f)(6) of this section concerning temporary school closings. For the purposes of this paragraph, interval means a period without instruction between consecutive school terms, quarters, or semesters or a period without instruction between a summer term and a term, quarter, or semester. (See definitions of divisions of the school year in § 21.4200(b).)
(1) Payment for intervals. In determining whether a student will be paid for an interval, VA will first review the provisions of paragraph (f)(2) of this section. If none of the provisions apply, VA will review the provisions of paragraphs (f)(3), (f)(4), and (f)(5) of this section to determine if payments may be made for the interval. In determining the length of a summer term, VA will disregard a fraction of a week consisting of 3 days or less, and will consider 4 days or more to be a full week.
(2) Restrictions on payment for intervals. VA will make no payment for an interval if:
(i) The student is training at less than the half-time rate on the last day of training during the term, quarter, semester, or summer term preceding the interval;
(ii) The student is on active duty;
(iii) The student requests, prior to authorization of an award or prior to negotiating the check, that no benefits be paid for the interval period;
(iv) The student’s entitlement applicable to such payment will be exhausted by receipt of such payment, and it is to the advantage of the student not to receive payment;
(v) The interval occurs between school years at a school that is not organized on a term, quarter, or semester basis,
(vi) The student withdraws from all courses in the term, quarter, semester, or summer session preceding the interval, or discontinues training before the scheduled start of an interval in a school not organized on a term, quarter, or semester basis; or
(vii) The student receives an accelerated payment for the term, quarter, semester, or summer session preceding the interval.
(3) Payment for interval between periods of enrollment at different schools. If the student transfers from one approved school for the purpose of enrolling in and pursuing a similar course at the second school, VA may make payments for an interval that does not exceed 30 days. If the student does not enroll in a similar course at the second school, VA may not make payments for the interval.
(4) Payment for intervals that occur at the same school. (i) If the student remains enrolled at the same school, VA may make payment for an interval which does not exceed 8 weeks and which occurs between:
(A) Semesters or quarters,
(B) A semester or quarter and a term that is at least as long as the interval,
(C) A semester or quarter and a summer term that is at least as long as the interval,
(D) Consecutive terms (other than semesters or quarters) provided that both terms are at least as long as the interval, or
(E) A term and summer term provided that both the term and the summer term are at least as long as the interval.
(ii) If the student remains enrolled at the same school, VA may make payment for an interval that does not exceed 30 days and that occurs between summer sessions within a summer term.
(5) Payment for intervals that occur between overlapping enrollments. (i) If a student is enrolled in overlapping enrollment periods whether before or after an interval (either at the same or different schools), VA will determine whether the student is entitled to payment for the interval between the overlapping enrollment periods, and what dates the interval and enrollment periods will be considered to begin and end, as follows:
(A) By treating the ending date of each enrollment period as though it were the student’s last date of training before the interval,
(B) By treating the beginning date of each enrollment period as though it were the student’s first date of training after the interval,
(C) By examining the interval payment that would be made to the student on the basis of the various combinations of beginning and ending dates, and
(D) By choosing the ending date and beginning date that result in the highest payment rate as the start and finish of the interval for VA measurement purposes.
(ii) VA will not reduce the interval rate of payment as a result of training the student may take during the interval, but VA will increase the interval rate of payment if warranted by such training.
(6) Payment for temporary school closings. VA may authorize payment for temporary school closings that are due to emergencies (including strikes) or established policy based upon an Executive Order of the President. If a school closing that is or may be temporary occurs in whole or in part during an interval, VA will first review the provisions of paragraphs (f)(2) through (f)(5) of this section to determine if payment may be continued during the interval.
(i) If payment would not be inconsistent with the provisions of paragraphs (f)(2) through (f)(5) of this section, a determination to authorize payment for a period of a temporary school closing, or to not authorize payment if, in the judgment of the VA official specified in this paragraph, either the school closing will not be temporary or payment would not otherwise be in accord with this section, or both, will be made by:
(A) The Director of the VA Regional Processing Office of jurisdiction if:
(1) The reason for the school closing does not result in the closing of a school or schools in the jurisdiction of the Director of another VA Regional Processing Office, and
(2) If the reason for the closing is a strike, the strike has lasted 30 days or less and is not anticipated to last more than 30 days.
(B) The Director, Education Service if:
(1) The reason for the school closing results in the closing of schools in the jurisdiction of more than one Director of a VA Regional Processing Office, or
(2) The reason for the closing is a strike and the strike lasts, or is anticipated to last, more than 30 days.
(ii) A school that disagrees with a decision made under paragraph (f)(6) of this section may request an administrative review. The review request must be submitted in writing and received by the Director of the VA Regional Processing Office of jurisdiction within one year of the date of VA’s letter notifying the school of the decision. A review of the decision will include the evidence of record and any other pertinent evidence the school may wish to submit. The affirmation or reversal of the initial decision based on an administrative review is final. The review will be conducted by the –
(A) Director, Education Service, if the Director of the VA Regional Processing Office of jurisdiction made the initial decision to continue or discontinue payments.
(B) Under Secretary for Benefits, if the Director, Education Service, made the initial decision to continue or discontinue payments.
§ 21.4145 Work-study allowance.
(a) Eligibility. (1) A veteran or reservist pursuing a program of education under either 38 U.S.C. chapter 30, 32 or 33 or 10 U.S.C. chapter 1606 at a rate of three-quarter time or full time is eligible to receive a work-study allowance.
(2) An eligible person is eligible to receive a work-study allowance when-
(i) The eligible person is pursuing a program of education under 38 U.S.C. chapter 35 on at least a three-quarter-time basis;
(ii) The eligible person is pursuing a program of education in a State; and
(iii) The eligible person is not pursuing a program of special restorative training.
(b) Selection criteria. Whenever feasible, the Department of Veterans Affairs will give priority in selection for this allowance to veterans with service-connected disabilities rated at 30 percent or more. The Department of Veterans Affairs shall consider the following additional selection criteria:
(1) Need of the veteran, reservist, or eligible person to augment his or her educational assistance allowance;
(2) Availability to the veteran, reservist, or eligible person of transportation to the place where his or her services are to be performed;
(3) Motivation of the veteran, reservist, or eligible person; and
(4) Compatibility of the work assignment to the veteran’s, reservist’s, or eligible person’s physical condition.
(c) Utilization. Work-study services may be utilized in connection with:
(1) Outreach services program as carried out under the supervision of a Department of Veterans Affairs employee;
(2) Preparation and processing of necessary papers and other documents at educational institutions or regional offices or facilities of the Department of Veterans Affairs;
(3) Hospital and domiciliary care and medical treatment at VA facilities;
(4) For a reservist training under 10 U.S.C. chapter 1606, activities relating to the administration of 10 U.S.C. chapter 1606 at Department of Defense facilities, Coast Guard facilities, or National Guard facilities; and
(5) Any other appropriate activity of VA.
(d) Rate of payment. In return for the veteran’s, reservist’s, or eligible person’s agreement to perform services for VA totaling not more than 25 hours times the number of weeks contained in an enrollment period, VA will pay an allowance in an amount equal to the higher of:
(1) The hourly minimum wage in effect under section 6(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)) times the number of hours the veteran, reservist, or eligible person has agreed to work; or
(2) The hourly minimum wage under comparable law of the State in which the services are to be performed times the number of hours the veteran, reservist, or eligible person has agreed to work.
(e) Payment in advance. VA will pay in advance an amount equal to the lesser of the following:
(1) 40 percent of the total amount payable under the contract; or
(2) An amount equal to 50 times the applicable minimum hourly wage in effect on the date the contract is signed.
(f) Veteran, reservist, or eligible person reduces rate of training. In the event the veteran, reservist, or eligible person reduces his or her training to less than three-quarter-time before completing an agreement, the veteran, reservist, or eligible person, with the approval of the Director of the VA field station, or designee, may be permitted to complete the portions of an agreement in the same or immediately following term, quarter, or semester in which the veteran, reservist, or eligible person ceases to be a three-quarter-time student.
(g) Veteran, reservist, or eligible person terminates training. (1) If the veteran, reservist, or eligible person terminates all training before completing an agreement, the Director of the Department of Veterans Affairs facility or designee:
(i) May permit him or her to complete the portion of the agreement represented by the money the Department of Veterans Affairs has advanced to the veteran, reservist, or eligible person for which he or she has performed no services, but
(ii) Will not permit him or her to complete that portion of an agreement for which no advance has been made.
(2) The veteran, reservist, or eligible person must complete the portion of an agreement in the same or immediately following term, quarter or semester in which the veteran, reservist, or eligible person terminates training.
(h) Indebtedness for unperformed service. (1) If the veteran, reservist, or eligible person has received an advance for hours of unperformed service, and the Department of Veterans Affairs has evidence that he or she does not intend to perform that service, the advance:
(i) Will be a debt due the United States, and
(ii) Will be subject to recovery the same as any other debt due the United States.
(2) The amount of indebtedness for each hour of unperformed service shall equal the hourly wage that formed the basis of the contract.
(i) Survey. The Department of Veterans Affairs will conduct an annual survey of its regional offices to determine the number of veterans, reservists, or eligible persons whose services can be utilized effectively.
(ii) [Reserved]
§ 21.4146 Assignments of benefits prohibited.
(a) General. Section 5301(a), Title 38 U.S.C., provides that payments of benefits due or to become due under the laws administered by the Department of Veterans Affairs shall not be assigned, except to the extent specifically authorized by law. No law specifically authorizes assignments of educational assistance allowances payable under 38 U.S.C. chapters 30, 32, 33, 35, or 36, or 10 U.S.C. chapter 1606, and therefore none shall be made.
(b) Designating an attorney-in-fact. In any case where a payee of an educational assistance allowance has designated the address of an attorney-in-fact as the payee’s address for the purpose of receiving his or her benefit check and has executed a power of attorney giving the attorney-in-fact authority to negotiate such benefit check, such action shall be deemed to be an assignment and is prohibited.
(c) Arrangements amounting to an assignment. Payments may be made to a post office box address or a bank address only if the educational institution (other than an organization or entity offering a licensing or certification test) attests that it has not entered into an assignment agreement with the student, and is not the attorney-in-fact of the student with power to negotiate an educational assistance check on behalf of the student and is not otherwise able to control the proceeds of the benefits check. Such statements shall be subject to review and when determined to be false, may be cause for creation of an overpayment to the account of the veteran or other eligible person, for which the educational institution (other than an organization or entity offering a licensing or certification test) may be liable under the provisions of § 21.4009.
(d) Correspondence school addresses. A request by a veteran or other eligible person to send the benefit check payable to him or her at an address which is an educational institution primarily engaged in correspondence course instruction will be presumed not to be the actual address of the veteran or other eligible person and will not be honored. Benefits checks will not be sent to the veteran or other eligible person in that event until a new address is provided designating the individual’s mailing address.
(e) Referral to Committee on Educational Allowances. When the evidence of record indicates that an educational institution has violated the terms of this section, the matter will be referred to the facility Committee on Educational Allowances as provided in §§ 21.4210(g) and 21.4212.
State Approving Agencies
§ 21.4150 Designation.
(a) The Chief Executive of each State is requested to create or designate a State department or agency as the State approving agency for his State, for the purpose of assuming the responsibilities delegated to the State under 38 U.S.C. chapter 36, or if the law of the State provides otherwise, to indicate the agency provided by such law (38 U.S.C. 3671(a)).
(b) The Chief Executive of each State will notify the Department of Veterans Affairs of any change in the designation of a State approving agency.
(c) The provisions of 38 U.S.C. chapter 36 and the sections in this part which refer to the State approving agency will be deemed to refer to VA:
(1) With respect to a State, when that State:
(i) Does not have and fails or declines to create or designate a State approving agency, or
(ii) Fails to enter into an agreement as provided in § 21.4153; and
(2) When VA has approval, disapproval, or suspension authority (under paragraphs (d), (e), (f), or (g) of this section, § 21.4152, or as otherwise provided by law).
(d) Any function, power or duty otherwise required to be exercised by a State, or by an officer or agency of a State, will, with respect to the Republic of Philippines, be exercised by the station head.
(e) The Secretary shall act as State approving agency for programs of apprenticeship, the standards for which have been approved by the Secretary of Labor pursuant to section 50a of title 29 U.S.C. as a national apprenticeship program for operation in more than one State and the training establishment is a carrier directly engaged in interstate commerce which provides such training in more than one State.
(f) Approval of a course of education offered by any agency or instrumentality of the Federal Government shall be under the authority of the Secretary.
(g) Approval under 38 U.S.C. 3689 of a licensing or certification test offered by any agency or instrumentality of the Federal government will be under the authority of the Secretary.
Course and licensing and certification test approval; jurisdiction and notices. See § 21.4250.
§ 21.4151 Cooperation.
(a) The Department of Veterans Affairs and the State approving agencies will take cognizance of the fact that definite duties, functions and responsibilities are conferred upon each of them. To assure that programs of education are administered effectively and efficiently, the cooperation of the Department of Veterans Affairs and the State approving agencies is essential.
(b) State approving agency responsibilities. State approving agencies are responsible for:
(1) Inspecting and supervising schools within the borders of their respective States;
(2) Determining those courses which may be approved for the enrollment of veterans and eligible persons;
(3) Ascertaining whether a school at all times complies with its established standards relating to the course or courses which have been approved;
(4) Determining those licensing and certification tests that may be approved for cost reimbursement to veterans and eligible persons;
(5) Ascertaining whether an organization or entity offering an approved licensing or certification test complies at all times with the provisions of 38 U.S.C. 3689; and
(6) Under an agreement with VA rendering services and obtaining information necessary for the Secretary’s approval or disapproval under chapters 30 through 36, title 38 U.S.C. and chapters 107 and 1606, title 10 U.S.C., of courses of education offered by any agency or instrumentality of the Federal Government within the borders of their respective States.
(c) The Department of Veterans Affairs will furnish State approving agencies with copies of such Department of Veterans Affairs informational and instructional material as may aid them in carrying out the provisions of 38 U.S.C. chapter 36.
§ 21.4152 Control by agencies of the United States.
(a) Control of educational institutions and State agencies generally prohibited. No department, agency, or officer of the United States will exercise any supervision or control over any State approving agency or State educational agency, or any educational institution.
(b) Authority retained by VA. The provisions of paragraph (a) of this section do not restrict authority conferred on VA
(1) To define full-time training in certain courses.
(2) To determine whether overcharges were made by a school and to disapprove the school for enrollment of veterans or eligible persons not previously enrolled. See § 21.4210(d).
(3) To determine whether the State approving agencies under the terms of contract or reimbursement agreements are complying with the standards and provisions of the law.
(4) To examine the records and accounts of schools which are required to be made available for examination by duly authorized representatives of the Federal Government. See §§ 21.4209 and 21.4263.
(5) To disapprove schools, courses, or licensing or certification tests for reasons stated in the law and to approve schools, courses, or licensing or certification tests notwithstanding lack of State approval.
§ 21.4153 Reimbursement of expenses.
For the purposes of this section, other than paragraph (d)(4) of this section, “educational institution” includes an organization or entity offering licensing or certification tests.
(a) Expenses will be reimbursed under contract – (1) Scope of contracts. (i) If a State or local agency requests payment for service contemplated by law, and submits information prescribed in paragraph (e) of this section, VA will negotiate a contract or agreement with the State or local agency to pay (subject to available funds and acceptable annual evaluations) reasonable and necessary expenses incurred by the State or local agency in –
(A) Determining the qualifications of educational institutions and training establishments to furnish programs of education to veterans and eligible persons,
(B) Supervising educational institutions and training establishments, and
(C) Furnishing any other services VA may request in connection with the law governing VA education benefits.
(ii) VA will take into account the results of annual evaluations carried out under § 21.4155 of this part when negotiating the terms and conditions of the contract or agreement.
(2) Reimbursable supervision. Supervision will consist of the services required:
(i) To determine that the programs are furnished in accordance with the law and with any other reasonable criteria as may be imposed by the State, and
(ii) To disapprove any programs which fail to meet the law and the established criteria.
(b) Reimbursement. The Under Secretary for Benefits and the Director, Education Service, are authorized to enter into agreements necessary to fulfill the purpose of paragraph (a) of this section. See § 21.4001(b).
(c) Reimbursable expenses. Reimbursement may be made from the funds provided in the existing contract with the State approving agency under the provisions of this section. No reimbursement may be authorized for expenses incurred by any individual who is not an employee of the State approving agency.
(1) Salaries. Salaries for which reimbursement may be authorized under a contract:
(i) Will not be in excess of the established rate of pay for other employees of the State with comparable or equivalent duties and responsibilities,
(ii) Will be limited to the actual salary expense incurred by the State, and
(iii) Will include the basic salary rate plus fringe benefits, such as social security, retirement, and health, accident, or life insurance, that are payable to all similarly circumstanced State employees.
(2) Travel. (i) Reimbursement will be made under the terms of the contract for travel of personnel engaged in activities in connection with the inspection, approval or supervision of educational institutions, including –
(A) Travel of personnel attending training sessions sponsored by VA and the State approving agencies.
(B) Expenses of attending out-of-State meetings and conferences only if the Director, Education Service, authorizes the travel.
(ii) Travel expenses for which reimbursement may be authorized under a contract will be limited to:
(A) Expenses allowable under applicable State laws or travel regulations of the State or agency;
(B) Expenses for travel actually performed by employees specified under the terms of the contract and;
(C) Either actual expenses for transportation, meals, lodging and local telephone calls, or the regular State or agency per diem allowance.
(iii) All claims for travel expenses payable under the terms of a contract must be supported by factual vouchers and all transportation allowances must be supported by detailed claims which can be checked against work assignments in the office of the State approving agency.
(3) Administrative expenses. In determining the allowance for administrative expenses for which payment may be authorized, VA will apply the provisions of 38 U.S.C. 3674(b). In making that application, VA will determine reimbursable salary cost pursuant to paragraph (c)(1) of this section.
(4) Subcontracts. The State approving agency may also be reimbursed for work performed by a subcontractor provided:
(i) The work has a direct relationship to the requirements of 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, 35, or 36; and
(ii) The Contracting Officer has approved the subcontract in advance.
(d) Nonreimbursable expenses. The Department of Veterans Affairs will not provide reimbursement under reimbursement contracts for:
(1) Expenditures other than salaries and travel of personnel required to perform the services specified in the contract and Department of Veterans Affairs regulations.
(2) Supplies, equipment, printing, postage, telephone services, rentals, and other miscellaneous items or a service furnished directly or indirectly.
(3) Except as provided in paragraph (c)(2) of this section, the salaries and travel of personnel while attending training sessions, or when they are engaged in activities other than those in connection with the inspection, approval, or supervision of educational institutions.
(4) The supervision of educational institutions which do not have veterans or eligible persons enrolled.
(5) Expenses incurred in the administration of an educational program which are costs properly chargeable as tuition costs, such as the development of course material or individual educational programs, teacher training or teacher improvement activities, expenses of coordinators, or administrative costs, such as those involving selection and employment of teachers. (This does not preclude reimbursement for expenses of the State agency incurred in the development of standards and criteria for the approval of courses under the law.)
(6) Expenses of a State approving agency for inspecting, approving or supervising courses when the agency is responsible for establishing, conducting or supervising those courses.
(7) Any expense for supervision or other services to be covered by contract which are already being reimbursed or paid from tuition funds under this law.
(e) Agency operating plan. A request by a State approving agency for reimbursement under the law will be subject to the requirements of 41 CFR 8-7.5101-8 as to “Equal Opportunity”. The request will be accompanied by the proposed plan of operation and the specific duties and responsibilities of all personnel for which reimbursement of salaries and travel expense is required.
(1) The Department of Veterans Affairs will determine personnel requirements for which the Department of Veterans Affairs provides reimbursement on the basis of estimated workloads agreed upon between the Department of Veterans Affairs and the State agency. Agreements are subject to review and adjustment.
(2) Workloads will be determined upon three factors:
(i) Inspection and approval visits,
(ii) Supervisory visits, and
(iii) Special visits at the request of the Department of Veterans Affairs.
(f) Contract compliance. Reimbursement under each contract or agreement is conditioned upon compliance with the standards and provisions of the contract and the law. If the Contracting Officer determines that the State has failed to comply with the standards or provisions of the law or with terms of the reimbursement contract, he or she will withhold reimbursement for claimed expenses under the contract. If the State disagrees, the State may request the Contracting Officer to reconsider his or her decision or may initiate action under the Disputes clause of the contract. See 48 CFR 801.602.
(g) Contract disputes. The State approving agency reimbursement contract is subject to the Contract Disputes Act of 1978. Disputes arising under, or relating to, the contract will be resolved in accordance with the disputes article of the contract and with appropriate procurement regulations.
§ 21.4154 Report of activities.
(a) State approving agencies must report their activities. Each State approving agency entering into a contract or agreement under § 21.4153 of this part must submit a report of its activities to VA. The report may be submitted monthly or quarterly by the State approving agency as provided in the contract or agreement.
(b) Content of the report. The report:
(1) Shall be in the form prescribed by the Secretary;
(2) Shall detail the activities of the State approving agencies under the agreement or contract during the preceding month or quarter, as appropriate;
(3) May include, at the option of the State approving agency, a cumulative report of its activities from the beginning of the fiscal year to date;
(4) Shall describe the services performed and the determination made in supervising and ascertaining the qualifications of educational institutions in connection with the programs of the Department of Veterans Affairs; and
(5) Shall include other information as the Secretary may prescribe.
§ 21.4155 Evaluations of State approving agency performance.
(a) Annual evaluations required. (1) VA shall conduct in conjunction with State approving agencies an annual evaluation of each State approving agency. The evaluation shall be based on standards developed by VA with State approving agencies. VA shall provide each State approving agency an opportunity to comment upon the evaluation.
(2) VA shall take into account the result of the annual evaluation of a State approving agency when negotiating the terms and conditions of a contract or agreement as provided in § 21.4153(a) of this part.
(b) Development of a training curriculum. (1) VA shall cooperate with State approving agencies in developing and implementing a uniform national curriculum, to the extent practicable, for –
(i) Training new employees of State approving agencies, and
(ii) Continuing the training of the employees of the State approving agencies.
(2) VA with the State approving agencies shall sponsor the training and continuation of training provided by this paragraph.
(c) Development, adoption and application of qualification and performance standards for employees of State approving agencies. (1) VA shall:
(i) Develop with the State approving agencies prototype qualification and performance standards;
(ii) Prescribe those standards for State approving agency use in the development of qualification and performance standards for State approving agency personnel carrying out approval responsibilities under a contract or agreement as provided in § 21.4153(a) of this part; and
(iii) Review the prototype qualification and performance standards with the State approving agencies no less frequently than once every five years.
(2) In developing and applying standards described in paragraph (d)(1) of this section, a State approving agency may take into consideration the State’s merit system requirements and other local requirements and conditions. However, no State approving agency may develop, adopt or apply qualification or performance standards that do not meet the requirements of paragraph (d)(3) of this section.
(3) The qualification and performance standards adopted by the State approving agency shall describe a level of qualification and performance which shall equal or exceed the level of qualification and performance described in the prototype qualification and performance standards developed by VA with the State approving agencies. The State approving agency may amend or modify its adopted qualification and performance standards annually as circumstances may require.
(4) VA shall provide assistance in developing these standards to a State approving agency that requests it.
(5) After November 19, 1989, each State approving agency carrying out a contract or agreement with VA under § 21.4153(a) shall:
(i) Apply qualification and performance standards based on the standards developed under this paragraph, and
(ii) Make available to any person, upon request, the criteria used to carry out its functions under a contract or agreement entered into under § 21.4153(a) of this part.
(6) A State approving agency may not apply these standards to any person employed by the State approving agency on May 20, 1988, as long as that person remains in the position in which the person was employed on that date.
Schools
§ 21.4200 Definitions.
The definitions in this section apply to this subpart, except as otherwise provided. The definitions of terms defined in this section also apply to subparts C, G, H, K, L, and P if they are not otherwise defined for purposes of those subparts.
(a) School, educational institution, institution. The terms school, educational institution and institution mean:
(1) A vocational school or business school;
(2) A junior college, teachers’ college, college, normal school, professional school, university, or scientific or technical institution;
(3) A public or private elementary school or secondary school;
(4) A training establishment as defined in paragraph (c) of this section;
(5) Any entity other than an institution of higher learning, that provides training for completion of a State-approved alternative teacher certification program; or
(6) Any private entity that offers, either directly or indirectly under an agreement with another entity, a course or courses to fulfill requirements for the attainment of a license or certificate generally recognized as necessary to obtain, maintain, or advance in employment in a profession or vocation in a high technology occupation.
(b) Divisions of the school year. (1) Ordinary School Year is generally a period of 2 semesters or 3 quarters which is not less than 30 nor more than 39 weeks in total length.
(2) Term, any regularly established division of the ordinary school year under which the school operates.
(3) Quarter, a division of the ordinary school year, usually a period from 10 to 13 weeks long.
(4) Semester, a division of the ordinary school year, usually a period from 15 to 19 weeks long.
(5) Summer term, the whole of the period of instruction at a school which takes place between ordinary school years. A summer term may be divided into several summer sessions.
(6) Summer session, any division of a summer term.
(c) Training establishment. The term training establishment means any establishment providing apprentice or other training on-the-job, including those under the supervision of a college, university, any State department of education, any State apprenticeship agency, any State board of vocational education, any joint apprenticeship committee, the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. chapter 4C, or any agency of the Federal government authorized to supervise such training.
(d) External degree. This term means a standard college degree given by an accredited college or university based on satisfactory completion of a prescribed program of independent study. The program may require occasional attendance for a workshop or seminar and may include some regular residence course work.
(e) Standard college degree. The term means an associate or higher degree awarded by:
(1) An institution of higher learning that is accredited as a collegiate institution by a recognized regional or national accrediting agency; or
(2) An institution of higher learning that is a candidate for accreditation, as that term is used by the regional or the national accrediting agencies; or
(3) An institution of higher learning upon completion of a course which is accredited by an agency recognized to accredit specialized degree-level programs.
(f) Undergraduate college degree. The term means a college or university degree obtained through the pursuit of unit subjects which are below the graduate level. Included are associate degrees, bachelors’ degrees and first professional degrees.
(g) Standard class session. The term standard class session means the time an educational institution schedules for class each week in a regular quarter or semester for one quarter or one semester hour of credit. It is not less than 1 hour (or one 50-minute period) of academic instruction, 2 hours (or two 50-minute periods) of laboratory instruction, or 3 hours (or three 50-minute periods) of workshop training.
(h) Institution of higher learning. This term means:
(1) A college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree.
(2) When there is no State law to authorize the granting of a degree, a school which:
(i) Is accredited for degree programs by a recognized accrediting agency, or
(ii) Is a recognized candidate for accreditation as a degree-granting school by one of the national or regional accrediting associations and has been licensed or chartered by the appropriate State authority as a degree-granting institution.
(3) A hospital offering medical-dental internships or residencies approved in accordance with § 21.4265(a) without regard to whether the hospital grants a post-secondary degree.
(4) An educational institution which:
(i) Is not located in a State,
(ii) Offers a course leading to a standard college degree or the equivalent, and
(iii) Is recognized as an institution of higher learning by the secretary of education (or comparable official) of the country in which the educational institution is located.
(i) Audited course. The term means any credit course which a student attends as a listener only with a prior understanding between school officials and the student that such attendance will not result in credit being granted toward graduation. See § 21.4252(i).
(j) Nonpunitive grade. The term means any grade assigned for pursuit of a course, whether upon completion of the course or at the time of withdrawal from the course, which has the effect of excluding the course from any consideration in determining progress toward fulfillment of requirements for graduation. No credit toward the school’s requirements for graduation is granted for such a grade, nor does the grade affect any other criteria for graduation by the policies of the school, such as a grade point average. Therefore, it has the same effect as an audited course. See § 21.4135(e).
(k) Punitive grade. The term means a grade assigned for pursuit of a course which is used in determining the student’s overall progress toward completion of the school’s requirements for graduation. Unlike the nonpunitive grade, the punitive grade does affect the criteria to be met by the student for graduation, i.e., it is a factor in computing the student’s grade average or grade point average, for example. For this reason it is not the same as an audited course, since it does have an effect upon the student’s ability to meet the school’s criteria for graduation. See § 21.4135(e).
(l) Drop-add period. The term means a reasonably brief period at the beginning of a term, not to exceed 30 days, officially designated by a school for unrestricted enrollment changes by students.
(m) Normal commuting distance. Two locations that are within 55 miles of each other are within normal commuting distance. Furthermore, a branch, extension or additional facility of a school located more than 55 miles from the school’s main campus or parent facility will be considered within normal commuting distance only if:
(1) School records show that, prior to the establishment of the additional teaching site, at least 20 students or 5 percent of the enrollment, whichever is the lesser, on the main campus or parent facility were regularly commuting from the area where the additional teaching site is located; or
(2) Other comparable evidence clearly shows that students commute regularly between the two locations.
(n) Enrollment. This term means the state of being on that roll, or file of a school which contains the names of active students.
(o) Pursuit of a program of education. (1) This term means to work, while enrolled, toward the objective of a program of education. This work must be in accordance with approved institution policy and regulations and applicable criteria of Title 38 U.S.C.; must be necessary to reach the program’s objective; and must be accomplished through:
(i) Resident courses,
(ii) Independent study courses,
(iii) Correspondence courses,
(iv) An apprenticeship or other on-the-job training program,
(v) Flight courses,
(vi) A farm cooperative course,
(vii) A cooperative course, or
(viii) A graduate program of research in absentia.
(2) The Department of Veterans Affairs will consider a veteran or eligible person who qualifies under § 21.4138 for payment during an interval or school closing, or who qualifies for payment but whose work is interrupted by a holiday vacation as defined in § 21.7020(b)(16), to be in pursuit of a program of education during the interval, school closing or holiday vacation.
(p) Enrollment period. (1) This term means an interval of time during which a veteran or eligible person:
(i) Is enrolled in an educational institution; and
(ii) Is pursuing his or her program of education.
(2) This term applies to each unit course or subject in the veteran’s or eligible person’s program of education.
(q) Attendance. This term means the presence of a veteran or eligible person:
(1) In the class where the approved course is being taught in which he or she is enrolled;
(2) At a training establishment; or
(3) Any other place of instruction, training or study designated by the educational institution or training establishment where the veteran or eligible person is enrolled and is pursuing a program of education.
(r) In residence on a standard quarter- or semester-hour basis. This term means study at a site or campus of a college or university, or off-campus at an official resident center, requiring pursuit of regularly scheduled weekly class instruction at the rate of one standard class session per week throughout a standard quarter or semester for one quarter- or one semester-hour credit.
(s) Deficiency course. This term means any secondary level course or subject not previously completed satisfactorily which is specifically required for pursuit of a post-secondary program of education.
(t) Remedial course. This term means a special course designed to overcome a deficiency at the elementary or secondary level in a particular area of study, or a handicap, such as in speech.
(u) Refresher course. This term means a course at the elementary or secondary level to review or update material previously covered in a course that has been satisfactorily completed.
(v) Reservist. The term reservist means a member of the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces who is eligible to receive educational assistance under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 1606.
(w) Alternative teacher certification program. The term alternative teacher certification program, for the purposes of determining whether an entity offering such a program is a school, educational institution, or institution as defined in paragraph (a)(5) of this section, means a program leading to a teacher’s certificate that allows individuals with a bachelor’s degree or graduate degree to obtain teacher certification without enrolling in an institution of higher learning.
(x) State. The term State has the same meaning as provided in § 3.1(i) of this chapter.
(y) Pilot certificate. A pilot certificate is a pilot certificate issued by the Federal Aviation Administration. The term means a pilot’s license as that term is used in 10 U.S.C. chapter 1606 and 38 U.S.C. chapters 30 and 32.
(z) Proprietary educational institution. The term proprietary educational institution (including a proprietary profit or proprietary nonprofit educational institution) means an educational institution that:
(1) Is not a public educational institution;
(2) Is in a State; and
(3) Is legally authorized to offer a program of education in the State where the educational institution is physically located.
(aa) High technology industry: The term high technology industry includes the following industries:
(1) Biotechnology;
(2) Life science technologies;
(3) Opto-electronics;
(4) Computers and telecommunications;
(5) Electronics;
(6) Computer-integrated manufacturing;
(7) Material design;
(8) Aerospace;
(9) Weapons;
(10) Nuclear technology; and
(11) Any other identified advanced technologies in the biennial Science and Engineering Indicators report published by the National Science Foundation.
(bb) Employment in a high technology industry. Employment in a high technology industry means employment in a high technology occupation specific to a high technology industry.
(cc) High technology occupation. The term high technology occupation means an occupation that leads to employment in a high technology industry. These occupations consist of:
(1) Life and physical scientists;
(2) Engineers;
(3) Mathematical specialists;
(4) Engineering and science technicians;
(5) Computer specialists; and
(6) Engineering, scientific, and computer managers.
(dd) Computer specialists. The term computer specialists includes the following occupations:
(1) Database, system, and network administrators;
(2) Database, system, and network developers;
(3) Computer and network engineers;
(4) Systems analysts;
(5) Programmers;
(6) Computer, database, and network support specialists;
(7) All computer scientists;
(8) Web site designers;
(9) Computer and network service technicians;
(10) Computer and network electronics specialists; and
(11) All certified professionals, certified associates and certified technicians in the information technology field.
(ee) Certification test. The term certification test means a test an individual must pass in order to receive a certificate that provides an affirmation of an individual’s qualifications in a specified occupation.
(ff) Licensing test. The term licensing test means a test offered by a State, local, or Federal agency, the passing of which is a means, or part of a means, to obtain a license. That license must be required by law in order for the individual to practice an occupation in the political jurisdiction of the agency offering the test.
(gg) Organization or entity offering a licensing or certification test. (1) The term organization or entity offering a licensing or certification test means:
(i) An organization or entity that causes a licensing test to be given and that will issue a license to an individual who passes the test;
(ii) An organization or entity that causes a certification test to be given and that will issue a certificate to an individual who passes the test; or
(iii) An organization or entity that administers a licensing or certification test for the organization or entity that will issue a license or certificate, respectively, to the individual who passes the test, provided that the administering organization or entity can provide all required information and certifications under § 21.4268 to the State approving agency and to VA.
(2) This term does not include:
(i) An organization or entity that develops and/or proctors a licensing or certification test but does not issue the license or certificate; or
(ii) An organization or entity that administers a test but does not issue the license or certificate if that administering organization or entity cannot provide all required information and certifications under § 21.4268 to the State approving agency and to VA.
(hh) Tuition assistance top-up. The term tuition assistance top-up means a payment of basic educational assistance to meet all or a portion of the charges of an educational institution for the education or training of a servicemember that are not met by the Secretary of the military department concerned under 10 U.S.C. 2007(a) or (c).
(ii) VA Regional Processing Office. The term VA Regional Processing Office means a VA office where claims for educational assistance under 38 U.S.C. chapters 30, 32, and 35 and 10 U.S.C. chapter 1606 are allowed or disallowed.
(jj) [Reserved]
(kk) Fugitive felon. The term fugitive felon means an individual identified as such by Federal, State, or local law enforcement officials and who is a fugitive by reason of –
(1) Fleeing to avoid prosecution for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees;
(2) Fleeing to avoid custody or confinement after conviction for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or
(3) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law.
(ll) Felony. The term felony means a major crime or offense defined as such under the law of the place where the offense was committed or under Federal law. It includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law.
§ 21.4201 Restrictions on enrollment; percentage of students receiving financial support.
(a) General. Except as otherwise provided in this section the Department of Veterans Affairs shall not approve an enrollment in any course for an eligible veteran, not already enrolled, for any period during which more than 85 percent of the students enrolled in the course are having all or part of their tuition, fees or other charges paid for them by the educational institution or by VA under title 38, U.S.C., or under title 10, U.S.C. This restriction may be waived in whole or in part.
(b) Affected schools. The requirements of paragraph (a) of this section apply to all courses not otherwise exempt or waived offered by all educational institutions, regardless of whether the institution is degree-granting, proprietary profit, proprietary nonprofit, eleemosynary, public and/or tax-supported.
(c) Affected courses. (1) The following courses or programs are exempt from the requirements of paragraph (a) of this section:
(i) Any farm cooperative course; and
(ii) Any course offered by a flying club established, organized and operated pursuant to regulations of a military department of the Armed Forces as nonappropriated sundry fund activities which are governmental instrumentalities.
(2) The provisions of paragraph (a) of this section apply to the enrollment of a serviceperson in a course leading to a high school diploma, equivalency certificate, or a refresher, remedial or deficiency course, but they do not apply to the enrollment of a veteran in such a course.
(3) Except as provided in paragraph (c)(2) of this section, the provisions of paragraph (a) of this section do not apply to an approved course which:
(i) Is offered under contract with the Department of Defense,
(ii) Is on or immediately adjacent to a military base, or a facility of the National Guard (including the Air National Guard) or the Selected Reserve,
(iii) Has been approved by the State approving agency of the State:
(A) Where the base is located or
(B) Where the parent school is located if the course is offered overseas, and
(iv) Is available only to:
(A) Military personnel and their dependents, or
(B) Military personnel, their dependents and civilian employees of a base located in a State, or
(C) Persons authorized by the base commander to attend the course provided the base is located outside the United States.
(D) In the case of a course offered on or immediately adjacent to a facility of the National Guard or the Selected Reserve, members of the National Guard, members of the Selected Reserve and their dependents.
(4) The provisions of paragraph (a) of this section generally do not apply to a course when the total number of veterans, eligible persons, and reservists receiving assistance under 38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10 U.S.C. chapter 1606, who are enrolled in the educational institution offering the course, equals 35 percent or less of the total student enrollment at the educational institution (computed separately for the main campus and any branch or extension of the institution). However, the provisions of paragraph (a) of this section will apply to such a course when –
(i) The course is a course of Special Assistance for the Educationally Disadvantaged and a serviceperson enrolls in it, or
(ii) The Director of the Department of Veterans Affairs facility of jurisdiction has reason to believe that the enrollment of veterans and eligible persons in the course may exceed 85 percent of the total student enrollment in the course.
(d) Applications for exemptions. No applications are required for any exemptions except that found in paragraph (c)(4) of this section. To obtain an exemption as stated in paragraph (c)(4) of this section schools must submit reports as required in paragraph (f)(1) of this section.
(e) Computing the 85-15 percent ratio – (1) Determining when separate computations are required. Except as provided in paragraph (c) of this section and in paragraph (e)(3) of this section, an 85-15 percent ratio must be computed for each course of study or curriculum leading to a separately approved educational or vocational objective. Computations will not be made for unit subjects, unless only one unit subject is approved by the State approving agency to be offered at a separate branch or extension of a school. Courses or curricula which are offered at separately approved branches or extensions, as well as courses or curricula leading to a secondary school diploma or equivalency certificate offered at any branch or extension, must have an 85-15 percent ratio computed separately from the same course offered at the parent institution. The count of students attending the branch may not be added to those attending the parent institution even for the same courses or curricula. However, the count of those attending courses or curricula offered at an additional facility, as opposed to a branch or extension, must be added to those attending the same course at the parent institution. Pursuit of a course or curriculum that varies in any way from a similar course, although it may have the same designation as the other similar course or curriculum, will require a separate 85-15 percent computation. A course or curriculum will be considered to vary from another if there are different attendance requirements, required unit subjects are different, required completion length is different, etc.
(i) Separate courses for computation purposes in institutions of higher learning will be determined by general curriculum only until the point at which it is reasonable to assume a major field would be declared and after that point by specific curriculum.
(A) General 2-year curricula at 2-year institutions of higher learning, general curricula such as AA (Associate of Arts) or AS (Associate of Science) degrees with no major specified, will require separate computations for each curriculum. Terminal 2-year courses (i.e., AAS (Associate of Applied Science), dental technology or auto mechanics certificate) and other associate degree courses where a field is specified must be computed separately for each objective.
(B) Students attending 4-year institutions of higher learning and graduate schools may be counted in general curricula such as BA (Bachelor of Art) and BS (Bachelor of Science) only until the normal point at which the school requires the student to declare a major subject. Then the 85-15 percent computation must be made for each specific curriculum, i.e., BS (Bachelor of Science) in electrical engineering, MA (Master of Arts) in English, etc.
(ii) NCD (noncollege degree) courses must be computed separately by approved vocational objective. If several curricula lead to the same coded vocational objective, each must meet the 85-15 percent requirement separately, unless it can be shown that two or more courses are identical in all respects (scheduling, hours devoted to each unit subject, etc.). Branch or extension courses will be computed separately from courses at the parent facility. Courses offered on a full- and part-time basis which are identical in length and content will be combined for computing the ratio.
(2) Assigning students to each part of the ratio. Notwithstanding the provisions of paragraph (a) of this section, the following students will be considered to be nonsupported provided VA is not furnishing them with educational assistance under title 38, U.S.C., or under title 10, U.S.C.:
(i) Students who are not veterans or reservists, and are not in receipt of institutional aid.
(ii) All graduate students in receipt of institutional aid.
(iii) Students in receipt of any Federal aid (other than Department of Veterans Affairs benefits).
(iv) Undergraduates and non-college degree students receiving any assistance provided by an institution, if the institutional policy for determining the recipients of such aid is equal with respect to veterans and nonveterans alike.
(3) Calculation. (i) To determine if the requirement of paragraph (a) of this section has been met for all courses except flight courses the full-time equivalent, nonsupported students as defined by paragraph (e)(2) of this section will be compared to the full-time equivalent students enrolled in the course. If the full-time equivalent, nonsupported students do not equal at least 15 percent of the total full-time enrollment, the 85-15 percent requirement has not been met for the course. If a non-Department of Veterans Affairs student in a correspondence course has not completed a lesson nor made a payment toward the cost of the course during the 6-month period immediately prior to the computation, the student will not be counted in computing the 85-15 percent ratio.
(ii) The 85-15 percent ratio for flight courses shall be computed by comparing the number of hours of training received by or tuition charged to nonsupported students in the preceding 30 days to the total number of hours of training received by or tuition charged to all students in the same period. All approved courses offered under 14 CFR parts 141 and 142 at a flight school will be considered to be one course for the purpose of making this computation. Similarly, all other approved courses offered at a flight school will be considered to be one course for the purpose of making this computation. In this computation hours of training or tuition charges for students enrolled –
(A) In the recreational pilot certification course and the private pilot certification course will be excluded;
(B) In a ground instructor certification course will be included;
(C) In courses approved under 14 CFR part 141, other than a ground instructor certification course, will be actual hours of logged instructional flight time or the charges for those hours; and
(D) In courses not approved under 14 CFR part 141, such as courses offered by flight simulator or courses for navigator or flight engineer, shall include ground training time or charges; actual logged instructional flight time or charges; and instructional time in a flight simulator or charges for that training.
(f) Reports. (1) Schools must submit to VA all calculations needed to support the exemption found in paragraph (c)(4) of this section. If the school is organized on a term, quarter, or semester basis, it shall make that submission no later than 30 days after the beginning of the first term for which the school wants the exemption to apply. If the school is not organized on a term, quarter or semester basis, it shall make that submission no later than 30 days after the beginning of the first calendar quarter for which the school wishes the exemption to apply. A school having received an exemption found in paragraph (c)(4) of this section shall not be required to certify that 85 percent or less of the total student enrollment in any course is receiving Department of Veterans Affairs assistance:
(i) Unless the Director of the VA facility of jurisdiction has reason to believe that the enrollment of eligible veterans and eligible persons in a specific course may exceed 85 percent of the total enrollment in a specific course, or
(ii) Until such time as the total number of veterans, eligible persons and reservists receiving assistance under 38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10 U.S.C. chapter 1606, who are enrolled in the educational institution offering the course, equals more than 35 percent of the total student enrollment at the educational institution (computed separately for the main campus and any branch or extension of the institution). At that time the procedures contained in paragraph (f)(2) of this section shall apply.
(2) The school must submit all calculations made under paragraph (e)(3) of this section to the Department of Veterans Affairs according to these time limits.
(i) If the school is organized on a term, quarter or semester basis, the calculations must be submitted no later than 30 days after the beginning of each regular school term (excluding summer sessions), or before the beginning date of the next term, whichever occurs first.
(ii) If a school is not organized on a term, quarter or semester basis, reports must be received by the Department of Veterans Affairs no later than 30 days after the end of each calendar quarter.
(g) Effect of the 85-15 percent ratio on processing new enrollments. (1) The Department of Veterans Affairs will process new enrollments of eligible veterans (and servicepersons where this provision applies to them), in a course on the basis of the school’s submission of the most recent computation showing that:
(i) The 85-15 percent ratio is satisfactory, or
(ii) The course is exempt under paragraph (c)(4) of this section.
(2) Except for those enrollments with a beginning date before or the same as the date the school completed the most recent computation, no benefits will be paid under 10 U.S.C. chapter 1606 or under 38 U.S.C. chapter 30, 32, 33, or 36, when that computation establishes that the course:
(i) Neither has a satisfactory 85-15 percent ratio, nor
(ii) Is exempt under paragraph (c)(4) of this section.
(3) If a school fails to submit a timely computation, no benefits will be paid for:
(i) The enrollment of a serviceperson in a course leading to a secondary school diploma or an equivalency certificate if the enrollment has beginning dates beyond the expiration of the allowable computation period, or
(ii) The enrollment of a veteran in any course to which the provisions of paragraph (a) of this section apply if the enrollment has beginning dates beyond the expiration of the allowable computation period.
(4) Enrollments with later beginning dates may be processed only after the school certifies that:
(i) The proper ratio has been reestablished for the course, or
(ii) The course is exempt from the requirement under paragraph (c)(4) of this section.
(5) When a school shows a reestablished 85-15 percent ratio, each new veteran enrollment or enrollment of a serviceperson in a course leading to a secondary school diploma or an equivalency certificate which is submitted after reestablishment must be individually computed into the ratio to ensure that the 85 percent limitation is not again immediately exceeded. The Department of Veterans Affairs will require individual computations until:
(i) The end of the term for which the ratio was reestablished, or
(ii) The end of the calendar quarter during which the ratio was reestablished if the school is not operated on a term, quarter or semester basis.
(6) Once a student is properly enrolled in a course which either meets the 85-15 percent requirement or which is exempt pursuant to paragraph (c) of this section, such a student may not have benefits for that course terminated because the 85-15 percent requirement subsequently is not met or because the course loses its exemption, as long as the student’s enrollment remains continuous. A student enrolled in an institution organized on a term basis need not attend summer sessions in order to maintain continuous enrollment. An enrollment may also be considered continuous if a “break” in enrollment is wholly due to circumstances beyond the student’s control such as serious illness.
(h) Waivers. Schools which desire a waiver of the provisions of paragraph (a) of this section for a course where the number of full-time equivalent students receiving VA education benefits equals or exceeds 85 percent of the total full-time equivalent enrollment in the course may apply for a waiver to the Director, Education Service, through the Director of the VA facility of jurisdiction. When applying, a school must submit sufficient information to allow the Director, Education Service, to judge the merits of the request against the criteria shown in this paragraph. This information and any other pertinent information available to VA shall be considered in relation to these criteria:
(1) Availability of comparable alternative educational facilities effectively open to veterans in the vicinity of the school requesting a waiver.
(2) Status of the school requesting a waiver as a developing institution primarily serving a disadvantaged population. The school should enclose a copy of its notice from the Department of Education that the school is eligible to be considered for a grant under the Strengthening Institutions Program or the Special Needs Program, if applicable. Otherwise the school should submit data sufficient to allow the Director, Education Service, to judge whether the school is similar to institutions which the Department of Education considers to be eligible to apply for a grant under these programs. The pertinent criteria and data categories are published in Title 34, Code of Federal Regulations, Chapter VI, part 624, subpart A; part 625, subpart A; and part 626, subpart A. The requirements of those criteria that a school be a “public or nonprofit” institution need not be met.
(3) Previous compliance history of the school, including such factors as false or deceptive advertising complaints, enrollment certification timeliness and accuracy, and amount of school liability indebtedness to VA.
(4) General effectiveness of the school’s program in providing educational and employment opportunities to the particular veteran population it serves. Factors to be considered should include the percentage of veteran-students completing the entire course, ratio of educational and general expenditures to full-time equivalency enrollment, etc.
§ 21.4202 Overcharges; restrictions on enrollments.
(a)-(b) [Reserved]
(c) Restrictions; proprietary schools. Enrollment will not be approved for any veteran or eligible person under the provisions of Chapter 34 or 35 respectively, in any proprietary school of which the veteran or eligible person is an official authorized to sign certificates of enrollment or monthly certificates of attendance, an owner or an officer.
§ 21.4203 Reports – requirements.
(a) General. All the reports required by this paragraph shall be in a form specified by the Secretary.
(1) Except as provided in paragraph (a)(2) of this section each educational institution, veteran and eligible person shall report without delay such information on enrollment, entrance, reentrance, change in the hours of credit or attendance, pursuit, interruption and termination of attendance of each veteran or eligible person enrolled in an approved course as the Secretary may require and using a form specified by the Secretary. See paragraphs (b) through (h) of this section.
(2) An educational institution may delay in reporting the enrollment or reenrollment of a veteran or an eligible person until the end of the term, quarter, or semester when –
(i) The veteran or eligible person is enrolled in a program of independent study;
(ii) The veteran or eligible person is pursuing the program on a less than half-time basis;
(iii) The educational institution has asked the Director of the VA facility of jurisdiction in writing for permission to delay in making the report; and
(iv) The Director of the VA facility of jurisdiction has determined that it is not feasible for the educational institution to monitor interruption or termination of the veteran’s or eligible person’s pursuit of the program.
(3) An educational institution which disagrees with a decision of a Director of a VA facility as to whether it may delay reporting enrollments or reenrollments as provided in paragraph (a)(2) of this section may ask to have that decision reviewed by the Director, Education Service. That request must be made in writing to the Director of the VA facility within one year of the date of the letter notifying the educational institution of the original decision.
(4) An educational institution which, under paragraph (a)(2) of this section, is delaying the reporting of the enrollment or reenrollment of a veteran shall provide the veteran with notice of the delay at the time that the veteran enrolls or reenrolls.
(5) In addition, educational institutions must –
(i) Verify enrollment for each veteran and eligible person receiving an advance payment; and
(ii) Verify the delivery of advance payment check and education loan check for each veteran and eligible person receiving an advance payment or loan.
(6) Nothing in this section or in any section in 38 CFR part 21 shall be construed as requiring any institution of higher learning to maintain daily attendance records for any course leading to a standard college degree.
(b) Certifications of enrollment. All the reports required by this paragraph shall be in a form specified by the Secretary.
(1) VA requires that educational institutions report all entrances and reentrances on a certification of enrollment.
(2) All educational institutions, regardless of the way in which they are organized, must clearly specify the course in which the veteran or eligible person is enrolled.
(3) Schools organized on a term, quarter or semester basis –
(i) May report enrollment for the term, quarter, semester, ordinary school year plus the following summer term.
(ii) May not report enrollment for a period that exceeds the ordinary school year plus the following summer term.
(iii) Must report the dates for the break between terms if –
(A) The certification covers two or more terms, and a term ends and the following term does not begin in the same or the next calendar month;
(B) The veteran or eligible person elects not to be paid for the intervals between terms;
(C) The certification covers two or more summer sessions; or
(D) The certification covers at least one summer session and at least one term which is not a standard semester or quarter.
(iv) Must submit a separate enrollment certification for each term, quarter or semester if the student –
(A) Is a veteran or eligible person pursuing a program on a less than half-time basis, or
(B) Is a serviceperson.
(v) Where a veteran or an eligible person, who is pursuing a course leading to a standard college degree, transfers between consecutive school terms from one approved institution to another approved institution, for the purpose of enrolling in, and pursuing, a similar course at the second institution, the veteran or eligible person shall, for the purpose of entitlement to the payment of educational assistance allowance be considered to be enrolled at the first institution during the interval, if the interval does not exceed 30 days, following the termination date of the school term of the first institution.
(c) Nonpunitive grade. A school may assign a nonpunitive grade for a course or subject in which the veteran or eligible person is enrolled even though the veteran or eligible person does not withdraw from the course or subject. When this occurs, the school must report the assignment of the nonpunitive grade in a form specified by the Secretary in time for VA to receive it before the earlier of the following dates is reached:
(1) Thirty days from the date on which the school assigns the grade, or
(2) Sixty days from the last day of the enrollment period for which the nonpunitive grade is assigned.
(d) Interruptions, terminations and changes in hours of credit or attendance. When a veteran or eligible person interrupts or terminates his or her training for any reason, including unsatisfactory conduct or progress, or when he or she changes the number of hours of credit or attendance, this fact must be reported to VA by the school in a form specified by the Secretary.
(1) If the change in status or change in number of hours of credit of attendance occurs on a day other than one indicated by paragraph (d)(2) or (3) of this section, the school will initiate a report of the change in time for the VA to receive it within 30 days of the date on which the change occurs. If the course in which the veteran or eligible person is enrolled does not lead to a standard college degree, and attendance must be certified for the course, the school may include the information on the monthly certification of attendance.
(2) If the enrollment of the veteran or eligible person has been certified by the school for more than one term, quarter or semester and the veteran or eligible person interrupts or terminates his or her training at the end of a term, quarter or semester within the certified period of enrollment, the school shall report the change in status to the Department of Veterans Affairs in time for the Department of Veterans Affairs to receive the report within 30 days of the last officially scheduled registration date for the next term, quarter or semester.
(3) If the change in status or change in the number of hours of credit or attendance occurs during the 30 days of a drop-add period, the school must report the change in status or change in the number of hours of credit or attendance to the Department of Veterans Affairs in time for the Department of Veterans Affairs to receive the report within 30 days from the last date of drop-add period or 60 days from the first day of the enrollment period, whichever occurs first.
(e) Correspondence courses. Where the course in which a veteran is enrolled under 38 U.S.C. chapter 34 or a spouse or surviving spouse is enrolled under 38 U.S.C. chapter 35 is pursued exclusively by correspondence, the school will report by an endorsement on the veteran’s or eligible spouse’s or surviving spouse’s certification the number of lessons completed by the veteran, spouse or surviving spouse and serviced by the school. Such reports will be submitted quarterly in a form specified by the Secretary.
(f) Certification. All reports required by this paragraph must be in a form specified by the Secretary.
(1) Courses not leading to a standard college degree. (i) Except as provided in this paragraph VA requires that a certification of attendance be submitted monthly for each veteran or eligible person enrolled in a course not leading to a standard college degree. The fact that the course may be pursued on a quarter, semester or term basis will not relieve the veteran or eligible person and the school of this requirement. Unless exempted by this paragraph this requirement also applies to courses measured on a credit-hour basis. This requirement does not apply to –
(A) Courses measured on a credit-hour basis pursuant to footnote 6 of § 21.4270(a),
(B) A course pursued on a less than one-half-time basis,
(C) A course pursued by a serviceperson while on active duty, or
(D) A correspondence course which must meet the requirements of paragraph (e) of this section.
(2) Courses leading to a standard college degree. Schools which have veterans or eligible persons enrolled in courses which lead to a standard college degree are not required to submit periodic certifications for students enrolled in such courses. Certifications are, however, required under paragraphs (b), (c), (d) and (h) of this section.
(3) Apprentice or other on-the-job training. A certification of attendance must be submitted monthly during the period of enrollment in the same manner as certifications required in paragraph (f)(1) of this section.
(g) Flight training courses. Where the course consists exclusively of flight training, the school will report by an endorsement on the veteran’s certification the type and number of hours of actual flight training received by, and the cost thereof to, the veteran. Such reports may be submitted monthly.
(h) Unsatisfactory progress, conduct or attendance. At times the unsatisfactory progress, conduct or attendance of a veteran or eligible person is caused by or results in his or her interruption or termination of training. If this occurs, the interruption or termination shall be reported in accordance with paragraph (d) of this section. If the veteran or eligible person continues in training despite unsatisfactory progress, conduct, or despite having failed to meet the regularly prescribed standards of attendance at the school, the school must report the fact of his or her unsatisfactory progress, conduct or attendance to VA within the time limit allowed by paragraph (h) (1) and (2) of this section.
(1) A veteran’s or eligible person’s progress may become unsatisfactory according to the regularly prescribed standards and practices of the school as a result of the grades he or she receives The school shall report such unsatisfactory progress to VA in time for VA to receive it before the earlier of the following dates is reached:
(i) Thirty days from the date on which the school official, who is responsible for determining whether a student is making progress, first received the final grade report which establishes that the veteran either is not progressing satisfactorily, or
(ii) Sixty days from the last day of the enrollment period during which the veteran or eligible person earned the grades that caused him or her not to meet the satisfactory progress standards.
(2) If the unsatisfactory progress, conduct or attendance of the veteran or eligible person is caused by any factors other than the grades which he or she receives, the school shall report the unsatisfactory progress, conduct or attendance to VA in time for VA to receive it within 30 days of the date on which the progress, conduct or attendance of the veteran or eligible person becomes unsatisfactory. See also § 21.4277.
§ 21.4204 Periodic certifications.
Educational assistance allowance is payable on the basis of a required certification concerning the pursuit of a course during the reporting period.
(a) Reports by eligible persons. An eligible person enrolled in a course which leads to a standard college degree, excepting eligible persons pursuing the course on a less than half-time basis, must verify each month his or her continued enrollment in and pursuit of his or her courses. In the case of an eligible person who completed, interrupted or terminated his or her course, any communication from the student or other authorized person notifying VA of the eligible person’s completion of course as scheduled or earlier termination date, will be accepted to terminate payments accordingly. Reports by other eligible persons will be submitted in accordance with § 21.4203 (e), (f) or (g).
(b) Requirements. The certifications required by § 21.4203 and paragraph (a) of this section will include a report on the following items when applicable:
(1) Continued enrollment in and pursuit of the course.
(2) Conduct and progress. See § 21.4277.
(3) Date of interruption or termination of training.
(4) Changes in number of semester hours or clock hours of attendance.
(5) Any other changes or modifications in the course as certified at enrollment.
(c) Term, quarter, or semester. For a course which does not lead to a standard college degree, if a school organized on a term, quarter, or semester basis has reported enrollment:
(1) For the ordinary school year or the complete course, the periodic certification will show the intervals between terms, quarters, or semesters as absences.
(2) By term, quarter, or semester, the periodic certification will not cover the intervals between terms, quarters, or semesters.
(d) Year-round courses. The periodic certifications will show any vacation period or interval between periods of instruction as absences. The periodic certification will not cover the period between school years.
(e) Farm cooperative courses. The monthly certification will cover only those periods of classroom instruction which are included in the prescheduled institutional portion of the course.
§ 21.4206 Reporting fee.
VA may pay annually to each educational institution furnishing education or each joint apprenticeship training committee acting as a training establishment under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35 or 36 a reporting fee for required reports or certifications. The reporting fee will be paid as soon as feasible after the end of the calendar year.
(a) Except as provided in paragraph (b) of this section the reporting fee will be computed for each calendar year by multiplying $7.00 by the number of eligible veterans and eligible persons enrolled under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, 35 or 36 during that calendar year.
(b) In computing the reporting fee VA will not count a veteran or servicemember whose only receipt of educational assistance under 38 U.S.C. chapter 30 during a calendar year was tuition assistance top-up.
(c) An additional $4 will be paid to those institutions which have delivered to the veteran or eligible person at registration the educational assistance check representing an advance payment, or which have delivered educational loan checks in accordance with the provisions of subpart F. If an institution delivers both an advance payment check and educational loan check(s) to the same veteran or eligible person within 1 calendar year, it shall receive only one additional $4 fee. In order to receive this fee, the institution shall submit to the Department of Veterans Affairs a certification of delivery of each check. If an advance payment check is not delivered within 30 days after commencement of the student’s program, the check is to be returned to the Department of Veterans Affairs. If an education loan check is not delivered within 30 days of the date the educational institution received it, the check shall be returned to the Department of Veterans Affairs.
(d) No reporting fee payable to an educational institution under this section shall be subject to offset by the Department of Veterans Affairs against any liability of the educational institution for any overpayment which the Department of Veterans Affairs has administratively determined to exist unless the liability of the educational institution was not contested by the educational institution or was upheld by a final decree of a court of appropriate jurisdiction.
(e) Before payment of a reporting fee the Department of Veterans Affairs will require an educational institution to certify that:
(1) It has exercised reasonable diligence in determining whether it or any course offered by it approved for the enrollment of veterans or eligible persons meets all of the applicable requirements of chapter 1606 of title 10 U.S.C. or chapters 30, 32, 33, 35 and 36 of title 38, U.S.C.; and
(2) It will, without delay, report any failure to meet any requirement to the Department of Veterans Affairs.
§ 21.4209 Examination of records.
(a) Availability of records. Notwithstanding any other provision of law, an educational institution, including for purposes of this section an organization or entity offering a licensing or certification test, must make the following records and accounts available to authorized Government representatives:
(1) Records and accounts pertaining to veterans or eligible persons who received educational assistance under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36;
(2) Other students’ records necessary for the Department of Veterans Affairs to ascertain institutional compliance with the requirements of these chapters; and
(3) The records of other individuals who took a licensing or certification test that VA believes are necessary to ascertain whether the veterans and eligible persons taking such test were reimbursed the correct amount.
(b) Type of records. Each educational institution must upon request of duly authorized representatives of the Government make available for examination all appropriate records and accounts, including but not limited to:
(1) Records and accounts which are evidence of tuition and fees charged to and received from or on behalf of all veterans, reservists, and eligible persons and from other students similarly circumstanced;
(2) Records of previous education or training of veterans, reservists, and eligible persons at the time of admission as students and records of advance credit, if any, granted by the educational institution at the time of admission;
(3) Records of the veteran’s, reservists’s, or eligible person’s grades and progress;
(4) Records of all advertising, sales or enrollment materials as required by § 21.4252(h) and section 3696(b), title 38 U.S.C.;
(5) Records and computations showing compliance with the requirements of § 21.4201 regarding the 85-15 percent ratio of students for each course; and
(6) Records necessary to demonstrate compliance with the requirements of § 21.4252(e) pertaining to the time necessary to complete a correspondence course.
(7) Records necessary to demonstrate compliance with the requirements of § 21.4268.
(c) Noncollege degree, apprentice, and other on-the-job. The educational institution having veterans, servicemembers, reservists, and/or eligible persons enrolled in a course that does not lead to a standard college degree must make available, in addition to the records and accounts required in paragraph (b) of this section, the records of leave, absences, class cuts, makeup work, and tardiness. Each training establishment that has enrolled veterans under 38 U.S.C. chapter 30, 32, or 33, reservists under 10 U.S.C. chapter 1606, or eligible persons under 38 U.S.C. chapter 35 must also make available payroll records.
(d) Nonaccredited courses. The educational institution having veterans or eligible persons enrolled in nonaccredited courses must make available, in addition to the records and accounts required in paragraphs (b) and (c) of this section the following:
(1) Records of interruptions for unsatisfactory conduct or attendance.
(2) Records of refunds of tuition, fees and other charges made to a veteran or eligible person who fails to enter the course or withdraws or is discontinued prior to completion of the course.
(e) Nonavailability. Failure to make such records available as provided in this section will be grounds for discontinuing the payment of educational assistance allowance or special training allowance.
(f) Retention of records. (1) Except as provided in paragraph (f)(2) of this section, an educational institution must keep records and accounts, including those pertaining to students not receiving benefits from VA, as described in this section, pertaining to each period of enrollment of a veteran, reservist, or eligible person. If those records are not available electronically, the paper records must be kept intact and in good condition at the educational institution for at least 3 years following the end of each enrollment period. If the records are stored electronically, the paper records may be stored at another site. The electronic records must be easily accessible at the educational institution for at least 3 years following the end of each enrollment period.
(2) An organization or entity offering a licensing or certification test must keep records and accounts intact and in good condition that are needed to show that veterans and eligible persons have been paid correctly for taking licensing or certification tests. The organization or entity must keep those records, at a site mutually agreed on, for at least 3 years following the date of the test.
(3) An educational institution will not be required under this section to retain records for longer than 3 years unless the educational institution receives from the Government Accountability Office or VA not later than 30 days before the end of the 3-year period a written request for longer retention.
§ 21.4210 Suspension and discontinuance of educational assistance payments, and of enrollments or reenrollments for pursuit of approved courses.
(a) Overview; explanation of terms used in §§ 21.4210 through 21.4216. (1) VA may pay educational assistance to a reservist under 10 U.S.C. chapter 1606 for the reservist’s pursuit of a course approved in accordance with the provisions of 38 U.S.C. chapter 36. VA may pay educational assistance under 38 U.S.C. chapter 32 or 35 to a veteran or eligible person for the individual’s pursuit of a course approved in accordance with the provisions of 38 U.S.C. chapter 36; or if the individual has taken a licensing or certification test approved in accordance with the provisions of 38 U.S.C. chapter 36. VA may pay educational assistance under 38 U.S.C. chapter 30 to a veteran or servicemember for the individual’s pursuit of a course approved in accordance with the provisions of 38 U.S.C. chapter 36; if the individual has taken a licensing or certification test approved in accordance with the provisions of 38 U.S.C. chapter 36 or if the individual is entitled to be paid benefits (tuition assistance top-up) to meet all or a portion of an educational institution’s charges for education or training that the military department concerned has not covered under tuition assistance. VA may pay educational assistance under 38 U.S.C. chapter 33 to an eligible individual or, as appropriate, to the individual’s institution of higher learning on his or her behalf, for the individual’s pursuit of a course or program of education if the course or program of education is offered by an institution of higher learning and approved under 38 U.S.C. chapter 30 in accordance with the provisions of 38 U.S.C. chapter 36; if the individual has taken a licensing or certification test approved in accordance with the provisions of 38 U.S.C. chapter 36, or if an individual is entitled to be paid educational assistance to meet all or a portion of the institution of higher learning’s established charges that the military department concerned has not covered by tuition assistance under 10 U.S.C. 2007(a) or (c). Except for tuition assistance top-up, where courses do not need to be approved, a State approving agency designated by VA, or in some instances VA, approves the course or test for payment purposes. Notwithstanding such approval, VA, as provided in paragraphs (b), (c), and (d) of this section, may suspend, discontinue, or deny payment of benefits to any or all otherwise eligible individuals for pursuit of a course or training approved under 38 U.S.C. chapter 36, and for taking a licensing or certification test approved under 38 U.S.C. chapter 36.
(2) For the purposes of this section and the purposes of §§ 21.4211 through 21.4216, except as otherwise expressly stated to the contrary –
(i) The term “course” includes an apprenticeship or other on-job training program;
(ii) The term “educational institution” includes a training establishment, or organization or entity offering a licensing or certification test; and
(iii) Reference to action suspending, discontinuing, or otherwise denying enrollment or reenrollment means such action with respect to providing educational assistance under the chapters listed in paragraph (a)(1) of this section.
(b) Denial of payment in individual cases. (1) VA may deny payment of educational assistance to a specific individual for pursuit of a course or courses if, following an examination of the individual’s case, VA has credible evidence affecting that individual that –
(i) The course fails to meet any of the requirements of 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, 35, or 36; or
(ii) The educational institution offering the individual’s course has violated any of those requirements of law.
(2) VA may deny payment of educational assistance to a specific individual for taking a licensing or certification test if, following an examination of the individual’s case, VA has credible evidence affecting that individual that –
(i) The test fails to meet any of the requirements of 38 U.S.C. 3689; or
(ii) The organization or entity offering the individual’s test has violated any of the requirements of 38 U.S.C. 3689.
(c) Notice in individual cases. Except as provided in paragraph (e) of this section, when VA denies payment of educational assistance to an individual under paragraph (b) of this section, VA will provide concurrent written notice to the individual. The notice shall state –
(1) The adverse action;
(2) The reasons for the action; and
(3) The individual’s right to an opportunity to be heard thereon in accordance with part 19 of this title.
(d) Actions affecting groups. (1) The Director of the VA Regional Processing Office of jurisdiction may:
(i) Suspend payments of educational assistance to all veterans, servicemembers, reservists, or eligible persons already enrolled in a course;
(ii) Disapprove all further enrollments or reenrollments of individuals seeking VA educational assistance for pursuit of the course (except for enrollments and reenrollments of servicemembers seeking to be paid benefits (tuition assistance top-up) to meet all or a portion of an educational institution’s charges for education or training that the military department concerned has not covered under tuition assistance); and
(iii) Suspend payments of educational assistance to all veterans, servicemembers, or eligible persons who may take a licensing or certification test after a date that the Director may determine.
(2) Except as provided in paragraphs (d)(3) and (i) of this section, the decision to act as described in paragraph (d)(1) of this section must be based on evidence of a substantial pattern of veterans, servicemembers, reservists, or eligible persons enrolled in the course or taking the test receiving educational assistance to which they are not entitled because:
(i) One or more of the course approval requirements of 38 U.S.C. chapter 36 are not met, including the course approval requirements specified in §§ 21.4253, 21.4254, 21.4261, 21.4262, 21.4263, 21.4264, and 21.4268; or
(ii) The educational institution offering the course has violated one or more of the recordkeeping or reporting requirements of 10 U.S.C. chapter 1606, or of 38 U.S.C. chapters 30, 32, 33, 35, and 36. These violations may include, but are not limited to, the following:
(A) Willful and knowing submission of false reports or certifications concerning students or courses of education;
(B) Failure to report to VA a veteran’s, servicemember’s, reservist’s, or eligible person’s reduction, discontinuance, or termination of education or training; or
(C) Submission of improper or incorrect reports in such number, manner, or period of time as to indicate negligence on its part, including failure to maintain an adequate reporting or recordkeeping system.
(3) The Director also may make a decision to take the action described in paragraph (d)(1) of this section when the Director has evidence that one or more prohibited assignments of benefits have occurred at an educational institution as a result of that educational institution’s policy. This decision may be made regardless of whether there is a substantial pattern of erroneous payments at the educational institution. See § 21.4146.
(4) The Director may disapprove the enrollment of all individuals not already enrolled in an educational institution (which for the purposes of this paragraph does not include a training establishment) when the Director finds that the educational institution:
(i) Has charged or received from veterans, servicemembers, reservists, or eligible persons an amount for tuition and fees in excess of the amount similarly circumstanced nonveterans are required to pay for the same course; or
(ii) Has instituted a policy or practice with respect to the payment of tuition, fees, or other established charges that substantially denies to veterans, servicemembers, reservists, or other eligible persons the benefits of advance payment of educational assistance authorized to such individuals under § 21.4138(a), § 21.7140(a), § 21.7640(d), or § 21.9680; or
(iii) Has used erroneous, deceptive, or misleading practices as set forth in § 21.4252(h).
(e) Actions that must accompany a mass suspension of educational assistance payments or suspension of approval of enrollments and reenrollments in a course or educational institution. (1) The Director of the VA Regional Processing Office of jurisdiction may suspend payment of educational assistance and may suspend approval of new enrollments and reenrollments as provided in paragraph (d) of this section, only after:
(i) The Director notifies in writing the State approving agency concerned and the educational institution of any failure to meet the approval requirements and any violation of recordkeeping or reporting requirements; and
(ii) The educational institution –
(A) Refuses to take corrective action; or
(B) Does not take corrective action within 60 days (or 90 days if permitted by the Director).
(2) Not less than 30 days before the Director acts to make a mass suspension of payments of educational assistance and/or suspend approval of new enrollments and reenrollments, the Director will, to the maximum extent feasible, provide written notice to each veteran, servicemember, reservist, and eligible person enrolled in the affected courses. The notice will:
(i) State the Director’s intent to suspend payments and/or suspend approval of new enrollments and reenrollments unless the educational institution takes corrective action;
(ii) Give the reasons why the Director intends to suspend payments and/or suspend approval of new enrollments and reenrollments; and
(iii) State the date on which the Director intends to suspend payments and/or suspend approval of new enrollments and reenrollments.
(3) If VA receives a claim for educational assistance for the taking by an individual of a licensing or certification test, and the individual took the licensing or certification test during a period when payment for taking such test was suspended, the Director will inform the individual in writing of the fact of the suspension and the reasons why payments were suspended.
(f) Actions in cases indicating submission of false, misleading, or fraudulent claims or statements. The Director of the VA Regional Processing Office of jurisdiction will take the following action, as indicated, that may be in addition to suspending payments or further approval of enrollments or reenrollments in a course or educational institution.
(1) If the Director has evidence indicating that an educational institution has willfully submitted a false or misleading claim, or that a veteran, servicemember, reservist, eligible person, or other person, with the complicity of an educational institution, has submitted such a claim, the Director will make a complete report of the facts of the case to the appropriate State approving agency and to the Office of Inspector General for appropriate action.
(2) If the Director believes that an educational institution has submitted a false, fictitious, or fraudulent claim or written statement within the meaning of the Program Fraud Civil Remedies Act (31 U.S.C. 3801-3812) or that a veteran, servicemember, reservist, eligible person, or other person, with the complicity of an educational institution, has submitted such a claim or made such a written statement, the Director will follow the procedures in part 42 of this title.
(g) Referral to the Committee on Educational Allowances. The Director of the VA Regional Processing Office of jurisdiction will refer the following matters to the Committee on Educational Allowances as provided in § 21.4212:
(1) A suspension under paragraph (d) of this section of payments of educational assistance to all veterans, servicemembers, reservists, or eligible persons already enrolled in a course;
(2) A disapproval under paragraph (d) of this section of all further enrollments or reenrollments of individuals seeking VA educational assistance for pursuit of the course (except for enrollments and reenrollments of servicemembers seeking to be paid tuition assistance top-up benefits to meet all or a portion of an educational institution’s charges for education or training that the military department concerned has not covered under tuition assistance); and
(3) A suspension under paragraph (d) of this section of payments of educational assistance to all veterans, servicemembers, or eligible persons who may take a licensing or certification test after a date that the Director has determined.
(h) Withdrawal of referral to Committee on Educational Allowances. (1) If, following a suspension of payments and/or of approval of enrollments or reenrollments, the Director of the VA Regional Processing Office of jurisdiction determines that the conditions which justified the suspension have been corrected, and the State approving agency has not withdrawn or suspended approval of the course(s) or test(s), the Director may resume payments to and/or approval of enrollments or reenrollments of the affected veterans, servicemembers, reservists, or eligible persons. If the case has already been referred to the Committee on Educational Allowances under paragraph (g) of this section at the time such action is taken, the Director will advise the Committee that the original referral is withdrawn.
(2) If, following a referral to the Committee on Educational Allowances, the Director finds that the State approving agency will suspend or withdraw approval, the Director may, if otherwise appropriate, advise the Committee that the original referral is withdrawn.
(i) This section does not apply to disapproval of courses based on conflicts of interests. VA will disapprove courses when required by § 21.4005(d) without applying the provisions of paragraphs (a) through (h) of this section.
§ 21.4211 Composition, jurisdiction, and duties of Committee on Educational Allowances.
(a) Authority. (1) 38 U.S.C. 3690 authorizes VA to discontinue educational benefits to veterans, servicemembers, reservists, or eligible persons when VA finds that:
(i) The program of education or course in which such individuals are enrolled fails to meet a requirement of 38 U.S.C. chapter 30, 32, 33, 35, or 36, or 10 U.S.C. chapter 1606, or the regulations in this part; or
(ii) An educational institution has violated any such statute or regulation, or fails to meet such a statutory or regulatory requirement.
(2) This authority does not extend to enrollments and reenrollments of individuals seeking to be paid tuition assistance top-up benefits to meet all or a portion of an educational institution’s charges for education or training that the military department concerned has not covered under tuition assistance.
(3) 38 U.S.C. 3689 and 3690 further authorize VA to deny payment to servicemembers or veterans for licensing or certification tests when VA finds that either the test or the organization or entity offering the test fails to meet a requirement of 38 U.S.C. 3689 or the applicable regulations of this part.
(4) Sections 21.4210 through 21.4216 implement the authority discussed in paragraphs (a)(1) and (a)(3) of this section.
(5) Each VA Regional Processing Office shall have a Committee on Educational Allowances. For the purposes of this section, the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction for educational institutions located in the Philippines. The Committee’s findings of fact and recommendations will be provided to the Director of the VA Regional Processing Office.
(6) The Secretary of Veterans Affairs delegates to each Director of a VA Regional Processing Office the authority to suspend or discontinue payment of educational benefits, to disapprove enrollments or reenrollments, or to deny payment of benefits for tests.
(b) Purpose. (1) The Committee on Educational Allowances is established to assist the Director of the VA Regional Processing Office of jurisdiction in deciding in a specific case whether –
(i) Educational assistance should be discontinued to all individuals enrolled in any course or courses an educational institution offers; and
(ii) If appropriate, whether approval of all further enrollments or reenrollments in the course or courses an educational institution offers should be denied to veterans, servicemembers, reservists, or other eligible persons pursuing those courses under programs VA administers; or
(iii) Payment should be denied to all servicemembers and veterans for taking a specific licensing or certification test.
(2) A Director’s decision described in paragraph (b)(1) of this section must be based on a finding that the educational institution is not meeting, or has violated, a requirement of 38 U.S.C. chapter 30, 32, 33, 35, or 36, or 10 U.S.C. chapter 1606, or the regulations in this part.
(3) The function of the Committee on Educational Allowances is to develop facts and recommend action to be taken on the basis of the facts found. A hearing before the Committee is not in the nature of a trial in a court of law. Instead, it is an administrative inquiry designed to create a full and complete record upon which a recommendation can be made as to whether the Director should discontinue payment of educational benefits and/or deny approval of new enrollments or reenrollments. Both the interested educational institution and VA Regional Counsel, or designee, representing VA, will be afforded the opportunity to present to the Committee any evidence, argument, or other material considered pertinent.
(c) Jurisdiction. The Committee on Educational Allowances will consider only those cases which are referred in accordance with §§ 21.4210(g) and 21.4212.
(d) Committee members. The Committee on Educational Allowances will consist of three employees of the VA Regional Processing Office of jurisdiction, at least one of whom is familiar with the adjudication of claims for benefits administered by the Veterans Benefits Administration. The Director of the VA Regional Processing Office of jurisdiction will designate a Chairperson. In the event that any member becomes unable to serve for any reason, the Director may appoint a replacement member. Before the Committee resumes its proceedings, the new member will be given an opportunity to apprise himself or herself of the actions and testimony already taken by the Committee.
(e) Duties and responsibilities of the Committee. (1) The function of the Committee on Educational Allowances is to make recommendations to the Director of the VA Regional Processing Office of jurisdiction in connection with specific cases referred for consideration as provided in §§ 21.4210(g) and 21.4212.
(2) The performance of this function will include:
(i) Hearing testimony or argument from witnesses or representatives of educational institutions and VA, as appropriate, when such persons appear personally before the Committee;
(ii) Receiving and reviewing all the evidence, testimony, briefs, statements, and records included in each case; and
(iii) Furnishing the Director of the VA Regional Processing Office of jurisdiction a written statement setting forth specifically the question or questions considered, a summation of the essential facts of record, recommendations as to issues referred for consideration by the Committee, and the basis therefor. In any case where there is not unanimity, both the majority and the minority views and recommendations will be furnished.
§ 21.4212 Referral to Committee on Educational Allowances.
(a) Form and content of referral to Committee. When the Director of the VA Regional Processing Office of jurisdiction refers a case to the Committee on Educational Allowances, as provided in § 21.4210(g), the referral will be in writing and will –
(1) State the approval, reporting, recordkeeping, or other criteria of statute or regulation which the Director has cause to believe the educational institution has violated;
(2) Describe the substantial pattern of veterans, servicemembers, reservists, or eligible persons receiving educational assistance to which they are not entitled which the Director has cause to believe exists, if applicable;
(3) Outline the nature of the evidence relied on by the Director in reaching the conclusions of paragraphs (a)(1) and (a)(2) of this section;
(4) Describe the Director’s efforts to obtain corrective action and the results of those efforts; and
(5) Ask the Committee on Educational Allowances to perform the functions described in §§ 21.4211, 21.4213, and 21.4214 and to recommend to the Director whether educational assistance payable to individuals pursuing the courses in question should be discontinued; approval of new enrollments should be denied; and/or payment to individuals for licensing or certification tests should be denied, as appropriate.
(b) Notice of the referral. (1) At the time of referral the Director will –
(i) Send notice of the referral, including a copy of the referral document, by certified mail to the educational institution. The notice will include statements that the Committee on Educational Allowances will conduct a hearing; that the educational institution has the right to appear before the Committee and be represented at the hearing to be scheduled; and that, if the educational institution intends to appear at the hearing, it must notify the Committee within 60 days of the date of mailing of the notice;
(ii) Provide an information copy of the notice and referral document to the State approving agency of jurisdiction; and
(iii) Place a copy of the notice and referral document on display at the VA Regional Processing Office of jurisdiction for review by any interested party or parties.
(2) The Director will provide a copy of the notice and referral document to the VA Regional Counsel, or designee, of jurisdiction, who will represent VA before the Committee on Educational Allowances.
§ 21.4213 Notice of hearing by Committee on Educational Allowances.
(a) Content of hearing notice. In any case referred to the Committee on Educational Allowances for consideration, a hearing will be held. If, as provided in § 21.4212(b), the educational institution has timely notified the Committee of its intent to participate in the hearing, the educational institution will be notified by certified letter from the Chairperson of the date when the hearing will be held. This hearing notification will inform the educational institution of –
(1) The time and place of the hearing;
(2) The matters to be considered;
(3) The right of the educational institution to appear at the hearing with representation by counsel, to present witnesses, to offer testimony, to present arguments, and/or to submit a written statement or brief; and
(4) The complete hearing rules and procedures.
(b) Expenses connected with hearing. The notice also will inform the educational institution that VA will not pay any expenses incurred by the educational institution resulting from its participation in the hearing, including the expenses of counsel or witnesses on behalf of the educational institution.
(c) Publication of hearing notice. Notice of the hearing will be published in the
§ 21.4214 Hearing rules and procedures for Committee on Educational Allowances.
(a) Rule 1. The Chairperson of the Committee on Educational Allowances will be in charge of the proceedings, will administer oaths or affirmations to witnesses, and will be responsible for the official conduct of the hearing. A majority of the members of the Committee will constitute a quorum. No party to the proceedings may conduct a voir dire of the Committee members.
(b) Rule 2. At the opening of the hearing, the Chairperson of the Committee on Educational Allowances will inform the educational institution of the purpose of the hearing, the nature of the evidence of record relating to the asserted failures or violations, and the applicable provisions of law and VA regulations. The Chairperson will advise the VA Regional Counsel, or designee, representing VA, that the Committee on Educational Allowances will entertain any relevant evidence or witnesses which VA Counsel presents to the Committee and which would substantiate a decision by the Committee to recommend that the Director of the VA Regional Processing Office of jurisdiction take an adverse action on the issues submitted for its review. The educational institution will be advised of its right to present any evidence, relevant to the issues submitted for the Committee’s review, by oral or documentary evidence; to submit rebuttal evidence; to present and cross-examine witnesses; and to make such statements as may be appropriate on its behalf for a true and full disclosure of the facts. VA Counsel will be allowed to cross-examine any witnesses offered by the educational institution and to reply to any written briefs or arguments submitted to the Committee.
(c) Rule 3. Any testimony or evidence, either oral or written, which the Committee on Educational Allowances deems to be of probative value in deciding the question at issue will be admitted in evidence. While irrelevant, immaterial, or unduly repetitious evidence, testimony, or arguments should be excluded, reasonable latitude will be permitted with respect to the relevancy, materiality, and competency of evidence. In most instances the evidence will consist of official records of the educational institution and VA, and these documents may be attested to and introduced by affidavit; but the introduction of oral testimony by the educational institution or by VA will be allowed, as appropriate, in any instance where the educational institution or VA Counsel desires. VA, however, will neither subpoena any witness on behalf of the educational institution for such purposes nor bear any expenses in connection with the appearance of such witness. In instances where the evidence reasonably available consists of signed written statements, secondary or hearsay evidence, etc., such evidence may be introduced into the record and will be given the weight and consideration which the circumstances warrant.
(d) Rule 4. A verbatim stenographic or recorded transcript of the hearing will be made. This transcript will become a permanent part of the record, and a copy will be furnished to the educational institution and the VA Counsel at the conclusion of the proceeding, unless furnishing of the copy of the transcript is waived by the educational institution.
(e) Rule 5. The Chairperson of the Committee on Educational Allowances will identify all exhibits in the order of introduction or receipt (numerically for VA exhibits and alphabetically for exhibits introduced by the educational institution). All such original exhibits or documents shall be attached to the original of the transcript. VA shall make photocopies or certified copies and attach them to the copy of the transcript furnished to the educational institution and the VA Counsel. The original transcript will accompany the Committee’s recommendation to the Director of the VA Regional Processing Office of jurisdiction along with all exhibits, briefs, or written statements received by the Committee during the course of the proceedings. Such documents should be clearly marked to indicate which were received into evidence and relied upon by the Committee in making its recommendations.
(f) Rule 6. The Committee on Educational Allowances, at its discretion, may reasonably limit the number of persons appearing at the hearing, including any affected individuals presented as witnesses by VA or the educational institution.
(g) Rule 7. Any person who is presented to testify will be required to be duly placed under oath or affirmation by the Chairperson of the Committee on Educational Allowances. If an official of the educational institution desires to present a statement personally, the individual will be required to be placed under oath or affirmation. The Chairperson will advise each witness that the Committee understands that he or she is voluntarily appearing before the Committee; that any testimony or statement given will be considered as being completely voluntary; and that no one has authority to require the individual to make any statement or answer any question against his or her will before the Committee, except that a person called as a witness on behalf of either VA or the educational institution must be willing to submit to cross-examination with respect to testimony given. Each witness will also be advised that his or her testimony or statement, if false, even though voluntary, may subject him or her to prosecution under Federal statutes.
(h) Rule 8. Any member of the Committee on Educational Allowances may question any witness presented to testify at the hearing or either a representative of the educational institution or the VA Counsel concerning matters that are relevant to the question at issue. Generally, questioning by a Committee member will be limited to the extent of clarifying information on the facts and issues involved.
(i) Rule 9. If the educational institution fails to timely notify the Committee of its intent to participate in a hearing or if a representative of the educational institution is scheduled to appear for a hearing but, without good cause, fails to appear either in person or by writing, the Committee will proceed with the hearing and will review the case on the basis of the evidence of record which shall be presented by the VA Counsel.
(j) Rule 10. Any objection by an authorized representative of the educational institution or the VA Counsel on a ruling by the Chairperson of the Committee on Educational Allowances regarding the admissibility of testimony or other evidence submitted will be made a matter of record, together with the substance in brief of the testimony intended or other evidence concerned. If the other evidence concerned is in the form of an affidavit or other document, it may be accepted for filing as a future reference if it is later ruled admissible as part of the record of the hearing.
(k) Rule 11. Objections relating to the jurisdiction or membership of the Committee on Educational Allowances or the constitutionality of statutes or the constitutionality of, or statutory authority for, VA regulations, are not before the Committee for decision. The time of the Committee will not be used to hear arguments in this regard. However, any such matters outside the province of the Committee may be the subject of a brief or a letter for consideration by the VA Office of General Counsel upon completion of the hearing. The ruling of such authority upon such issues will be obtained and included in the record before the Committee’s recommendations are submitted to the Director of the VA Regional Processing Office of jurisdiction. If the VA General Counsel’s ruling on such legal issues necessitates reopening the proceeding, that shall be done before the Committee makes its recommendations to the Director of the VA Regional Processing Office of jurisdiction.
(l) Rule 12. The hearing will be open to the public.
(m) Rule 13. The hearing will be conducted in an orderly manner with dignity and decorum. The conduct of members of the Committee on Educational Allowances, the VA Counsel, and any representatives of the educational institution shall be characterized by appropriate impartiality, fairness, and cooperation. The Chairperson of the Committee shall take such action as may be necessary, including suspension of the hearing or the removal of the offending person from the hearing room for misbehavior, disorderly conduct, or the persistent disregard of the Chairperson’s ruling. Where this occurs, the Chairperson will point out that the Committee is entitled to every possible consideration in order that the case may be presented clearly and fully, which may be accomplished only through observance of orderly procedures.
(n) Rule 14. The Chairperson of the Committee on Educational Allowances will conduct the hearing proceedings in such a manner that will protect from disclosure information which tends to disclose or compromise investigative sources or methods or which would violate the privacy of any individual. The salient facts, which form the basis of charges, may be disclosed and discussed without revealing the source.
(o) Rule 15. At the close of the hearing, the Chairperson of the Committee on Educational Allowances shall inform the appropriate representative of the educational institution that the arguments and the evidence presented will be given careful consideration; and that notice of the decision of the Director of the VA Regional Processing Office of jurisdiction, together with the Committee’s recommendations, will be furnished to the educational institution and the VA Counsel at the earliest possible time. The Chairperson will also indicate that notice of the Director’s decision will be published in the
(p) Rule 16. In making its findings of facts and recommendations, the Committee on Educational Allowances will consider only questions which are referred to it by the Director of the VA Regional Processing Office of jurisdiction as being at issue and which are within the jurisdiction of the Committee.
§ 21.4215 Decision of Director of VA Regional Processing Office of jurisdiction.
(a) Decision. The Director of the VA Regional Processing Office of jurisdiction will render a written decision on the issue or issues of discontinuance or denial that were the subject of the Committee on Educational Allowances proceedings.
(b) Basis of decision. (1) The decision of the Director of the VA Regional Processing Office of jurisdiction will be based upon all admissible evidence of record, including –
(i) The recommendations of the Committee on Educational Allowances;
(ii) The hearing transcript and the documents admitted in evidence; and
(iii) The ruling on legal issues referred to appropriate authority.
(2) The decision will clearly describe the evidence and state the facts on which the decision is based and, in the event that the decision differs from the recommendations of the Committee on Educational Allowances, will give the reasons and facts relied upon by the Director in deciding not to follow the Committee majority’s recommendations.
(c) Correction of deficiencies. If the Director of the VA Regional Processing Office of jurisdiction believes that the record provided for review is incomplete or for any reason should be reopened, before rendering a decision he or she will order VA staff to gather any additional necessary evidence and will notify the educational institution that it may comment upon the new evidence added. The Director will then notify the educational institution as to whether the matter will be resubmitted to the Committee on Educational Allowances for further proceedings, on the basis of the new circumstances. If the matter is referred back to the Committee, the Director will defer a decision until he or she has received the Committee’s new recommendations based upon all of the evidence of record.
(d) Effective date. If the decision of the Director of the VA Regional Processing Office of jurisdiction is adverse to the educational institution, the decision shall indicate specifically the effective date of each adverse action covered by the decision.
(e) Notification of decision. (1) The Director of the VA Regional Processing Office of jurisdiction shall send a copy of the decision to the educational institution by certified mail, return receipt requested. A copy of the decision also will be provided by regular mail to the institution’s legal representative of record, if any. If the decision is adverse to the educational institution, the Director will enclose a notice of the educational institution’s right to have the Director, Education Service review the decision.
(2) The Director of the VA Regional Processing Office of jurisdiction will also send a copy of the decision to:
(i) The State approving agency; and
(ii) VA Counsel.
(3) The Director of the VA Regional Processing Office of jurisdiction shall post a copy of the decision at the VA Regional Processing Office of jurisdiction. A copy of the decision shall be published in the
§ 21.4216 Review of decision of Director of VA Regional Processing Office of jurisdiction.
(a) Decision is subject to review by the Director, Education Service. At the request of the educational institution the Director, Education Service will review a decision of a Director of a VA Regional Processing Office of jurisdiction to discontinue payments; to disapprove new enrollments or reenrollments; or to deny payment of benefits for licensing or certification tests. This review will be based on the evidence of record when the Director of the VA Regional Processing Office of jurisdiction made that decision. It will not be de novo in nature and no hearing on the issue will be held. When reviewing a decision to deny payment for licensing or certification tests, the Director, Education Service may seek the advice of the Professional Certification and Licensure Advisory Committee established under 38 U.S.C. 3689(e).
(b) Authority of Director, Education Service. The Director, Education Service has the authority to affirm, reverse, or remand the original decision. In the case of such a review, the reviewing official’s decision, other than a remand, shall become the final Department decision on the issue presented.
(c) Notice of decision of Director, Education Service is required. Notice of the reviewing official’s decision will be provided to the interested parties and published in the
Programs of Education
§ 21.4232 Specialized vocational training – 38 U.S.C. Chapter 35.
(a) Eligibility requirements for specialized vocational training. (1) The Department of Veterans Affairs may provide a program of a specialized course of vocational training to an eligible person who:
(i) Is not in need of special restorative training, and
(ii) Requires specialized vocational training because of a mental or physical handicap.
(2) The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) will:
(i) After consulting with the Vocational Rehabilitation Panel, determine whether such a course is in the best interest of the eligible person; and
(ii) Deny the application for the program when the course is not in the eligible person’s best interest.
(3) Both the CP or VRC and the Vocational Rehabilitation Panel will assist in developing the program, if the CP or VRC has previously determined that the course is in the eligible person’s best interest.
(4) The Department of Veterans Affairs may authorize specialized vocational training for an eligible child only if the child has passed his or her 14th birthday at the time training is to begin.
(b) Program objective. The objective of a program of specialized vocational training will be designated as a vocational objective.
(c) Special assistance. When needed, special assistance will be provided under § 21.4276.
(d) Length of specialized vocational training. When the program of specialized vocational training will exceed 45 months, the CP or VRC will refer the program to the Executive Director, Veteran Readiness and Employment (VR&E) Service for prior approval.
§ 21.4233 Combination.
An approved program may consist of a combination of courses with instruction offered by a school alternating with instruction in a business or industrial establishment (a cooperative course); courses offered by two schools concurrently; or courses offered through class attendance and by television concurrently. A farm cooperative program may be approved which consists of a combination of institutional agricultural courses and concurrent agricultural employment (see § 21.4264). A school may contract the actual training to another school or entity, provided the course is approved by the State approving agency having approval jurisdiction of the school or entity which actually provides the training.
(a) Cooperative courses. A full-time program of education consisting of phases of school instruction alternated with training in a business or industrial establishment with such training being strictly supplemental to the school instruction may be approved. Alternating periods may be a part-day in school and a part-day on job or may be such periods which alternate on a daily, weekly, monthly or on a term basis. For purposes of approval the school offering the course must submit to the State approving agency, with its application, statements of fact showing at least the following:
(1) That the alternate in-school periods of the course are at least as long as the alternate periods in the business or industrial establishment; in determining this relationship between the two components of the course, training received in a business or industrial establishment during a vacation or officially scheduled school break period shall be excluded from the calculation; where the course is approved as continuous part-time work and part-time study in combination, it shall be measured on the basis of the ratio which each portion of the training bears to full time as defined in § 21.4270(c) of this part. The institutional portion must be at least equivalent to one-half time training and must be combined with a job training portion sufficient for the combined training to equal full time.
(2) That the course is set up as a cooperative course in the school catalog or other literature of the school;
(3) That the school itself arranges with the employer’s establishment for providing the alternate on-job periods of training on such basis that the on-job portion of the course will be training in a real and substantial sense and will supplement the in-school portion of the course;
(4) That the school arranges directly with the employer’s establishment for placing the individual student in that establishment and exercises supervision and control over the student’s activities at the establishment to an extent that assures training in a true sense to the student; and
(5) That the school grants credit for the on-job portion of the course for completion of a part of the work required for granting a degree or diploma.
(b) Concurrent enrollment. Where a veteran or eligible person cannot successfully schedule his or her complete program at one school, a program of concurrent enrollment may be approved. When requesting such a program the veteran or eligible person must show that his or her complete program of education or training is not available at the school in which he or she will pursue the major portion of his or her program (the primary school), or that it cannot be scheduled successfully within the period in which he or she plans to complete his or her program.
(1) If VA measures the courses pursued at both institutions on either a clock-hour basis or a credit-hour basis, VA will measure the veteran’s or eligible person’s enrollment by adding together the units of measurement in the second school to the units of measurement for the courses in the primary institution. The standard for full time will be the full-time standard for the courses at the primary institution.
(2) Where the standards for measurement of the courses pursued concurrently in the two schools are different, VA will measure the veteran’s or eligible person’s enrollment by converting the units of measurement for courses in the second school to the equivalent in value expressed in units of measurement required for the courses in the program of education which the veteran or eligible person is pursuing at the primary institution.
(3) If the provisions of paragraph (b)(2) of this section require VA to convert clock hours to credit hours, it will do so by –
(i) Dividing the number of credit hours which VA considers to be full-time at the educational institution whose courses are measured on a credit-hour basis by the number of clock hours which are full-time at the educational institution whose courses are measured on a clock-hour basis; and
(ii) Multiplying each clock hour of attendance by the decimal determined in paragraph (b)(3)(i) of this section. VA will drop all fractional hours.
(4) If the provisions of paragraph (b)(2) of this section require VA to convert credit hours to clock hours, it will do so by –
(i) Dividing the number of clock hours which VA considers to be full-time at the educational institution whose courses are measured on a clock-hour basis by the number of credit hours which are full-time at the educational institution whose courses are measured on a credit-hour basis; and
(ii) Multiplying each credit hour by the number determined in paragraph (b)(4)(i) of this section. VA will drop all fractional hours.
(5) Periodic certifications of training will be required from the veteran and each of the schools where concurrent enrollment is approved in a course which does not lead to a standard college degree and to which the measurement provisions of § 21.4270(b), of this part do not apply. (See §§ 21.4203 and 21.4204.)
(c) Television. (1) A course offered by open-circuit television is an independent study course. In order for an eligible person to receive educational assistance while pursuing such a course, the course must meet all the requirements for independent study found in § 21.4267.
(2) Closed circuit telecast. Instruction offered through closed circuit telecast which requires regular classroom attendance is to be recognized to the same extent as regular classroom and/or laboratory instruction.
(d) Farm cooperative course. A program of education consisting of institutional agricultural courses pursued by an eligible person who is concurrently engaged in agricultural employment which is relevant to such institutional course may be approved if the course meets the requirements of § 21.4264.
(e) Contract. All or part of the program of education of a school may be provided by another school or entity under contract. Such school or entity actually providing the training must obtain approval of the course from the State approving agency in the State having jurisdiction of that school or entity. If the course is a course of flight training, the school or entity actually providing the training must also obtain approval of the course from the Federal Aviation Administration. Measurement of the course and payment of an allowance will be appropriate for the course as offered by the school or entity actually providing the training.
§ 21.4234 Change of program.
(a) Definition. (1) Except as provided in paragraph (a)(2) of this section, a change of program consists of a change in the educational, professional, or vocational objective for which the veteran, reservist, or eligible person entered training.
(2) VA does not consider any of the following to be changes of program:
(i) A change in the type of courses needed to attain a vocational objective;
(ii) A change in the individual’s educational, professional or vocational objective following the successful completion of the immediately preceding program of education;
(iii) A return to the individual’s prior program of education following a change of program if the individual resumes training in the program without any loss of credit or standing in that program;
(iv) An enrollment in a new program of education when that program leads to a vocational, educational or professional objective in the same general field as the immediately preceding program of education; or
(v) An enrollment or reenrollment of a servicemember seeking to be paid tuition assistance top-up benefits to meet all or a portion of an educational institution’s charges for education or training that the military department concerned has not covered under tuition assistance.
(b) Application. A veteran, reservist, or eligible person may request a change of program by any form of communication. However, if the veteran, reservist, or eligible person does not furnish sufficient information to allow the Department of Veterans Affairs to process the request, the Department of Veterans Affairs will furnish the prescribed form for a change of program to him or her for completion.
(c) Optional change of program. A spouse or surviving spouse eligible to receive educational assistance under 38 U.S.C. chapter 35 may make one optional change of program if his or her previous course was not interrupted due to his or her own misconduct, neglect, or lack of application.
(d) Other changes of program. (1) The following changes of program may not be made solely at the option of the veteran, reservist, or eligible person. The Department of Veterans Affairs must approve them before paying educational assistance allowance:
(i) A second or subsequent change of program made by a veteran or eligible person other than a child receiving educational assistance under 38 U.S.C. chapter 35,
(ii) An initial change of program made by a veteran or eligible spouse or surviving spouse if the first program was interrupted or discontinued due to his or her own misconduct, neglect or lack of application, or
(iii) Any change of program made by a child receiving educational assistance under 38 U.S.C. chapter 35.
(2) The Department of Veterans Affairs will approve a change of program listed in paragraph (d)(1) of this section if:
(i) The program of education which the veteran, reservist, or eligible person proposes to pursue is suitable to his or her aptitudes, interests and abilities,
(ii) In any instance where the veteran, reservist, or eligible person has interrupted, or failed to progress in his or her program due to his or her own misconduct, neglect or lack of application, there is a reasonable likelihood with respect to the program the veteran, reservist, or eligible person proposes to pursue that there will not be a recurrence of such an interruption or failure to progress, and
(iii) In the case of an eligible child receiving educational assistance under 38 U.S.C. chapter 35 the new program meets the criteria applicable to final approval of an original application. See § 21.4230.
(3) The Department of Veterans Affairs may approve a third or subsequent change of program if applicable conditions of paragraph (d)(2) of this section are met and the additional change or changes are necessitated by circumstances beyond the control of the veteran, reservist, or eligible person. Circumstances beyond the control of the veteran, reservist, or eligible person include, but are not limited to:
(i) The course being discontinued by the school when no other similar course leading to the same objective is available within normal commuting distance.
(ii) Unexpected financial difficulties preventing completion of the last program because of the overall cost of the program needed to reach the objective, or
(iii) The veteran, reservist, or eligible person being required to relocate because of health reasons in an area where training for the last objective is not available within normal commuting distance.
(4) Notwithstanding any provision of any other paragraph of this section, if a third or subsequent change of program occurs after May 31, 1991, VA will apply only the applicable provisions of paragraph (d)(2) of this section. If the applicable provisions of paragraph (d)(2) of this section are met, VA will approve the change of program. VA will not apply any of the provisions of paragraph (d)(3) of this section in determining whether the change of program should be approved.
(e) Adjustments; transfers. A change in courses or places of training will not be considered a change of objective in the following instances:
(1) The pursuit of the first program is a prerequisite for entrance into and pursuit of a second program.
(2) A transfer from one school to another when the program at the second school leads to the same educational, professional or vocational objective, and does not involve a material loss of credit, or increase training time.
(3) Revision of a program which does not involve a change of objective or material loss of credit nor loss of time originally planned for completion of the veteran’s or eligible person’s program. For example, an eligible person enrolled for a bachelor of science degree may show a professional objective such as chemist, teacher or engineer. His or her objective for purposes of this paragraph shall be considered to be “bachelor degree” and any change of courses will be considered only an adjustment in the program, not a change, so long as the subjects he or she pursues lead to the bachelor degree and there is no extension of time in the attaining of that degree.
Counseling. See § 21.4100.
§ 21.4235 Programs of education that include flight training.
VA will use the provisions of this section to determine whether an individual may be paid educational assistance for pursuit of flight training. See § 21.4263 for approval of flight courses for VA training.
(a) Eligibility. A veteran or servicemember who is otherwise eligible to receive educational assistance under 38 U.S.C. chapter 30 or 32, or a reservist who is eligible for expanded benefits under 10 U.S.C. chapter 1606 as provided in § 21.7540(b), may receive educational assistance for flight training in an approved course provided that the individual meets the requirements of this paragraph. Except when enrolled in a ground instructor certification course or when pursuing flight training under paragraph (f) of this section, the individual must –
(1) Possess a valid private pilot certificate or higher pilot certificate such as a commercial pilot certificate;
(2) If enrolled in a course other than an Airline Transport Pilot (ATP) course, hold a second-class medical certificate on the first day of training and, if that course began before October 1, 1998, hold that certificate continuously during training; and
(3) If enrolled in an ATP certification course, hold a first-class medical certificate on the first day of training and, if that course began before October 1, 1998, hold that certificate continuously during training.
(b) Approval of program. VA may approve the individual’s program of education as described on the individual’s application if:
(1) The flight courses that constitute the program of education meet Federal Aviation Administration standards for such courses and the Federal Aviation Administration and the State approving agency approve them; and
(2) The flight training included in the program –
(i) Is generally accepted as necessary for the attainment of a recognized vocational objective in the field of aviation; or
(ii) Is given by an educational institution of higher learning for credit toward a standard college degree that the individual is pursuing.
(c) Pursuit of flight courses. (1) VA will pay educational assistance to an eligible individual for an enrollment in a commercial pilot certification course leading to Federal Aviation Administration certification for a particular category even if the individual has a commercial pilot certificate issued by the Federal Aviation Administration for a different category, since each category represents a different vocational objective.
(2) VA will pay educational assistance to an eligible individual for an enrollment in an instrument rating course only if the individual simultaneously enrolls in a course required for a commercial pilot certificate for the category for which the instrument rating course is pursued or if, at the time of enrollment in the instrument rating course, the individual has a commercial pilot certificate issued by the Federal Aviation Administration for such category. The enrollment in an instrument rating course alone does not establish that the individual is pursuing a vocational objective, as required for VA purposes, since that rating equally may be applied to an individual’s private pilot certificate, only evidencing an intent to pursue a non-vocational objective.
(3) VA will pay educational assistance to an eligible individual for an enrollment in a flight course other than an instrument rating course or a ground instructor course, including courses leading to an aircraft type rating, only if the individual has a commercial pilot certificate issued by the Federal Aviation Administration for the category to which the particular course applies.
(4) VA will pay educational assistance to an eligible individual for an enrollment in a ground instructor certificate course, even though the individual does not have any other flight certificate issued by the Federal Aviation Administration, since the Federal Aviation Administration does not require a flight certificate as a prerequisite to ground instructor certification and ground instructor is a recognized vocational objective.
(5) VA will not pay an eligible individual for simultaneous enrollment in more than one flight course, except as provided in paragraph (c)(2) of this section.
(d) Some individuals are already qualified for a flight course objective. (1) The provisions of §§ 21.5230(a)(4), 21.7110(b)(4), and 21.7610(b)(4), prohibiting payment of educational assistance for enrollment in a course for whose objective the individual is already qualified, apply to enrollments in flight courses.
(2) A former military pilot with the equivalent of a commercial pilot certificate and an instrument rating may obtain a commercial pilot certificate and instrument rating from the Federal Aviation Administration without a flight exam within 12 months of release from active duty. Therefore, VA will consider such a veteran to be already qualified for the objectives of a commercial pilot certification course and an instrument rating course if begun within 12 months of the individual’s release from active duty.
(e) Some flight courses are refresher training. The provisions of §§ 21.5230(c), 21.7020(b)(26), 21.7122(b), 21.7520(b)(20), and 21.7610(b)(4) that provide limitations on payment for refresher training that is needed to update an individual’s knowledge and skill in order to cope with technological advances while he or she was on active duty service apply to flight training.
(1) An individual who held a Federal Aviation Administration certificate before or during active duty service may have surrendered that certificate or the Federal Aviation Administration may have canceled it. The individual may receive the equivalent of the number of months of educational assistance necessary to complete the course that will qualify him or her for the same grade certificate.
(2) A reservist is not eligible for refresher training unless he or she has had prior active duty.
(f) Flight training at an institution of higher learning. (1) An individual who is eligible for educational assistance under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, or 35 is exempt from the provisions of paragraphs (a)(2) through (d) of this section when his or her courses include flight training that is part of a program of education that leads to a standard college degree.
(2) An individual described in paragraph (f)(1) of this section may pursue courses that may result in the individual eventually receiving recreational pilot certification or private pilot certification, provided that the courses also lead to a standard college degree.
§ 21.4236 Tutorial assistance.
(a) Enrollment. A veteran or eligible person may receive supplemental monetary assistance to provide tutorial services if he or she:
(1) Is pursuing a post-secondary educational program on a half-time or more basis at an educational institution, and
(2) Has a deficiency in a subject which is indispensable to the satisfactory pursuit of an approved program of education.
(b) Approval. The Department of Veterans Affairs will grant approval when:
(1) The educational institution certifies that:
(i) Individualized tutorial assistance is essential to correct a deficiency in a specified subject or subjects required as a part of, or which is prerequisite to, or which is indispensable to the satisfactory pursuit of an approved program of education;
(ii) The tutor selected:
(A) Is qualified, and
(B) Is not the parent, spouse, child, brother or sister of the veteran or eligible person; and
(iii) The charges for this assistance do not exceed the customary charges for such tutorial assistance; and
(2) The assistance is furnished on an individual basis.
(c) Limits on tutorial assistance. (1) VA will authorize the cost of tutorial assistance in an amount not to exceed $100 per month.
(2) The total amount of all tutorial assistance provided under this section will not exceed $1200.
(d) Entitlement charge. VA will make no charge against the veteran’s or eligible person’s entitlement to educational assistance for any amount of tutorial assistance authorized.
Courses
§ 21.4250 Course and licensing and certification test approval; jurisdiction and notices.
(a) General. The statements made in this paragraph are subject to exceptions found in paragraph (c) of this section.
(1) If an educational institution offers a resident course in a State, only the State approving agency for the State where the course is being offered may approve the course for VA training. If the State approving agency chooses to approve a resident course (other than a flight course) not leading to a standard college degree, it must also approve the class schedules of that course.
(2) If an educational institution with a main campus in a State offers a resident course not located in a State, only the State approving agency for the State where the educational institution’s main campus is located may approve the course for VA training. If the State approving agency chooses to approve a resident course (other than a flight course) not leading to a standard college degree, it must also approve the class schedules of that course.
(3) If an educational institution offers a course by independent study or by correspondence, only the State approving agency for the State where the educational institution’s main campus is located may approve the course for VA training.
(4) If a training establishment offers a program of apprenticeship or other on-job training, only the State approving agency for the State where the training will take place may approve the course for VA training.
(5) Except as provided in paragraph (a)(6)(ii) of this section, if a State or political subdivision of a State offers a licensing test, only the State approving agency for the State where the license will be valid may approve the test for VA payment.
(6)(i) If an organization or entity offers a licensing or certification test and applies for approval of that test, only the State approving agency for the State where the organization or entity has its headquarters may approve the test and the organization or entity offering the test for VA payment. This approval will be valid wherever the test is given.
(ii) If the organization or entity offering a licensing or certification test does not apply for approval, and a State or political subdivision of a State requires that an individual take the test in order to obtain a license, the State approving agency for the State where the license will be valid may approve the test for VA payment. This approval will be valid for the purpose of VA payment only if the veteran takes the test in the State or political subdivision of the State where the license is valid.
(7) A course approved under 38 U.S.C. chapter 36 will be deemed to be approved for purposes of 38 U.S.C. chapter 35.
(8) Any course that was approved under 38 U.S.C. chapter 33 (as in effect before February 1, 1965), or under 38 U.S.C. chapter 35 before March 3, 1966, and was not or is not disapproved for failure to meet any of the requirements of the applicable chapters, will be deemed to be approved for purposes of 38 U.S.C. chapter 36.
(9) VA may make tuition assistance top-up payments of educational assistance to an individual to meet all or a portion of an educational institution’s charges for education or training that the military department concerned has not covered under tuition assistance, even though a State approving agency has not approved the course in which the individual was enrolled.
(b) State approving agencies. Approval by State approving agencies will be in accordance with the provisions of 38 U.S.C. Chapter 36 and such regulations and policies as the agency may adopt not in conflict therewith.
(1) Notice of approval. (i) Each State approving agency must provide to VA:
(A) A list of schools specifying which courses it has approved;
(B) A list of licensing and certification tests and organizations and entities offering these tests that it has approved; and
(C) Any other information that it and VA may determine to be necessary.
(ii) The lists and information must be provided on paper or electronically as VA may require.
(2) Notice of suspension of approval or disapproval. Each State approving agency will notify the Department of Veterans Affairs of the suspension of approval or disapproval of any course or licensing or certification test previously approved and will set forth the reasons for such suspension of approval or disapproval. See § 21.4259.
(3) Failure to act. If notice has been furnished that the State approving agency does not intend to act on the application of a school, the school may request approval by the Department of Veterans Affairs.
(c) Department of Veterans Affairs approval. (1) The Executive Director, Veteran Readiness and Employment (VR&E) Service may approve special restorative training in excess of 12 months to overcome or lessen the effects of a physical or mental disability to enable an eligible child to pursue a program of education under 38 U.S.C. chapter 35.
(2) The Director, Education Service may approve –
(i) A course of education offered by any agency of the Federal Government authorized under other laws to offer such a course;
(ii) A course of education to be pursued under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36 offered by a school located in the Canal Zone, Guam or Samoa;
(iii) Except as provided in § 21.4150(d) as to the Republic of the Philippines, a course of education to be pursued under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, or 35 offered by an institution of higher learning not located in a State;
(iv) Any course in any other school in accordance with the provisions of 38 U.S.C. chapter 36;
(v) Any program of apprenticeship the standards for which have been approved by the Secretary of Labor pursuant to section 50a of Title 29 U.S.C. as a national apprenticeship program for operation in more than one State and for which the training establishment is a carrier directly engaged in interstate commerce and providing training in more than one State; and
(vi) Any licensing or certification test and any organization or entity offering such a test if –
(A) The organization or entity is an agency of the Federal government;
(B) The headquarters of the organization or entity offering the test is not located in a State; or
(C) The State approving agency that would, under paragraph (a)(5) or (a)(6) of this section, have approval jurisdiction for the test has declined to perform the approval function for licensing or certification tests and the organizations or entities offering these tests.
Designation. See § 21.4150.
§ 21.4251 Minimum period of operation requirement for educational institutions.
The provisions of this section do not apply to licensing or certification tests or to the organizations or entities offering those tests. For information on the minimum period of operation requirement that applies to licensing or certification tests, see § 21.4268.
(a) Definitions. The following definitions apply to the terms used in this section. The definitions in § 21.4200 apply to the extent that no definition is included in this paragraph.
(1) Control. The term control (including the term controlling) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
(2) Person. The term person means an individual, corporation, partnership, or other legal entity.
(b) Some educational institutions must be in operation for 2 years. Except as provided in paragraph (c) of this section, when a proprietary educational institution offers a course not leading to a standard college degree, VA may not approve an enrollment in that course if the proprietary educational institution –
(1) Has been operating for less than 2 years;
(2) Offers the course at a branch or extension and the branch or extension has been operating for less than 2 years; or
(3) Offers the course following either a change in ownership or a complete move outside its original general locality, and the educational institution does not retain substantially the same faculty, student body, and courses as before the change in ownership or the move outside the general locality unless the educational institution, after such change or move, has been in operation for at least 2 years.
(c) Exception to the 2-year operation requirement. Notwithstanding the provisions of paragraph (b) of this section, VA may approve the enrollment of a veteran, servicemember, reservist, or eligible person in a course not leading to a standard college degree approved under this subpart if it is offered by a proprietary educational institution that –
(1) Offers the course under a contract with the Department of Defense or the Department of Transportation; and
(2) Gives the course on or immediately adjacent to a military base, Coast Guard station, National Guard facility, or facility of the Selected Reserve.
(d) Operation for 2 years. VA will consider, for the purposes of paragraph (b) of this section, that a proprietary educational institution (or a branch or extension of such an educational institution) will be deemed to have been operating for 2 years when the educational institution (or a branch or extension of such an educational institution) –
(1) Has been operating as an educational institution for 24 continuous months pursuant to the laws of the State(s) in which it is approved to operate and in which it is offering the training; and
(2) Has offered courses continuously for at least 24 months inclusive of normal vacation or holiday periods, or periods when the institution is closed temporarily due to a natural disaster that directly affected the institution or the institution’s students.
(e) Move outside the same general locality. A proprietary educational institution (or a branch or extension thereof) will be deemed to have moved to a location outside the same general locality of the original location when the new location is beyond normal commuting distance of the original location, i.e., 55 miles or more from the original location.
(f) Change of ownership. (1) A change of ownership of a proprietary educational institution occurs when –
(i) A person acquires operational management and/or control of the proprietary educational institution and its educational activities; or
(ii) A person ceases to have operational management and/or control of the proprietary educational institution and its educational activities.
(2) Transactions that may cause a change of ownership include, but are not limited to the following:
(i) The sale of the educational institution;
(ii) The transfer of the controlling interest of stock of the educational institution or its parent corporation;
(iii) The merger of 2 or more educational institutions; and
(iv) The division of one educational institution into 2 or more educational institutions.
(3) VA considers that a change in ownership of an educational institution does not include a transfer of ownership or control of the institution, upon the retirement or death of the owner, to:
(i) The owner’s parent, sibling, spouse, child, spouse’s parent or sibling, or sibling’s or child’s spouse; or
(ii) An individual with an ownership interest in the institution who has been involved in management of the institution for at least 2 years preceding the transfer.
(g) Substantially the same faculty, student body, and courses. VA will determine whether a proprietary educational institution has substantially the same faculty, student body, and courses following a change of ownership or move outside the same general locality by applying the provisions of this paragraph.
(1) VA will consider that the faculty remains substantially the same in an educational institution when faculty members who teach a majority of the courses after the move or change in ownership, were so employed by the educational institution before the move or change in ownership.
(2) VA will consider that the courses remain substantially the same at an educational institution when:
(i) Faculty use the same instructional methods during the term, quarter, or semester after the move or change in ownership as were used before the move or change in ownership; and
(ii) The courses offered after the move or change in ownership lead to the same educational objectives as did the courses offered before the move or change in ownership.
(3) VA considers that the student body remains substantially the same at an educational institution when, except for those students who have graduated, all, or a majority of the students enrolled in the educational institution on the last day of classes before the move or change in ownership are also enrolled in the educational institution after the move or change in ownership.
§ 21.4252 Courses precluded; erroneous, deceptive, or misleading practices.
(a) Bartending and personality development. Enrollment will not be approved in any bartending or personality development course.
(b) Avocational and recreational. Enrollment will not be approved in any course which is avocational or recreational in character or the advertising for which contains significant avocational or recreational themes. The courses identified in paragraphs (b)(1), (2), and (3) of this section are presumed to be avocational or recreational in character and require justification for their pursuit.
(1) Any photography course or entertainment course, or
(2) Any music course, instrumental or vocal, public speaking course, or course in dancing, sports or athletics, such as horseback riding, swimming, fishing, skiing, golf, baseball, tennis, bowling, sports officiating, or other sport or athletic courses, except courses of applied music, physical education, or public speaking which are offered by institutions of higher learning for credit as an integral part of a program leading to an educational objective, or
(3) Any other type of course which the Department of Veterans Affairs determines to be avocational or recreational.
(4) To overcome the presumption that a course is avocational or recreational in character, the veteran or eligible person will be required to establish that the course will be of bona fide use in the pursuit of his or her present or contemplated business or occupation.
(c) Flight training. The Department of Veterans Affairs may approve an enrollment in any of the following types of courses of flight training if an institution of higher learning offers the course for credit toward the standard college degree the veteran or eligible person is pursuing. The Department of Veterans Affairs otherwise will not approve an enrollment in:
(1) A course of flight training to obtain a private pilot’s license or equivalent level training; or
(2) Any course of flight training under Chapter 35.
(d) Courses by radio. Enrollment in such courses will not be approved.
(e) Correspondence courses. (1) VA will not approve the enrollment of an individual under 10 U.S.C. Chapter 1606 or 38 U.S.C. Chapter 30, 32, or 35 in a correspondence course or the correspondence portion of a correspondence-residence course unless the course is accredited and meets the requirements of §§ 21.4253, 21.4256, and 21.4279, as appropriate.
(2) VA will not approve the enrollment of an eligible child under 38 U.S.C. Chapter 35 in a correspondence course or the correspondence portion of a correspondence-residence course.
(f) Alternative teacher certification program. VA will not approve the enrollment of an eligible person under 38 U.S.C. Chapter 35 in an alternative teacher certification program unless that program is offered by an institution of higher learning as defined in § 21.4200(h).
(g) Independent study. (1) Effective October 29, 1992, VA may pay educational assistance to a veteran who is enrolled in a nonaccredited course or unit subject offered entirely or partly by independent study only if –
(i) Successful completion of the nonaccredited course or unit subject is required in order for the veteran to complete his or her program of education; and the veteran –
(A) Was receiving educational assistance on October 29, 1992, for pursuit of the program of education of which the nonaccredited independent study course or unit subject forms a part, and
(B) Has remained continuously enrolled in that program of education from October 29, 1992, to the date the veteran enrolls in the nonaccredited independent study course or unit subject; or
(ii) Was enrolled in and receiving educational assistance for the nonaccredited independent study course or unit subject on October 29, 1992, and remains continuously enrolled in that course or unit subject.
(2) Whether or not the veteran is enrolled will be determined by the regularly prescribed standards and practices of the educational institution.
(h) Erroneous, deceptive, or misleading practices. For the purposes of this paragraph, “educational institution” includes an organization or entity offering licensing or certification tests.
(1) If an educational institution uses advertising, sales, enrollment practices, or candidate handbooks that are erroneous, deceptive, or misleading by actual statement, omission, or intimation, VA will not approve:
(i) An enrollment in any course such an educational institution offers; and
(ii) Payment of educational assistance as reimbursement to a veteran or eligible person for taking a licensing or certification test that the educational institution offers.
(2) VA will use the services and facilities of the Federal Trade Commission, where appropriate, under an agreement:
(i) To carry out investigations; and
(ii) To decide whether an educational institution uses advertising, sales, or enrollment practices, or candidate handbooks, described in paragraph (h)(1) of this section.
(3) Any educational institution offering courses approved for the enrollment of veterans, reservists, and/or eligible persons, or offering licensing or certification tests approved for payment of educational assistance as reimbursement to veterans or eligible persons who take the tests, must maintain a complete record of all advertising, sales materials, enrollment materials, or candidate handbooks (and copies of each) that the educational institution or its agents have used during the preceding 12-month period. The State approving agency and VA may inspect this record. The materials in this record shall include but are not limited to:
(i) Any direct mail pieces,
(ii) Brochures,
(iii) Printed literature used by sales people,
(iv) Films, video cassettes and audio tapes disseminated through broadcast media,
(v) Material disseminated through print media,
(vi) Tear sheets,
(vii) Leaflets,
(viii) Handbills,
(ix) Fliers, and
(x) Any sales or recruitment manuals used to instruct sales personnel, agents or representatives of the educational institution.
(i) Audited courses. The school’s certifications shall exclude courses which are being audited by the veteran or eligible person, since no educational assistance allowances shall be paid for such courses.
(j) Nonpunitive graded courses. The school shall report any course for which a nonpunitive grade is assigned and no payment shall be authorized for such a course. If payment has already been made, in whole or in part, by the Department of Veterans Affairs at the time the grade is assigned, an overpayment shall be created against the account of the student for such a course, unless the Department of Veterans Affairs determines there are mitigating circumstances.
(k) Courses with suspended approval. When a State approving agency has suspended the approval of a course for new enrollments, new enrollments in the course shall not be approved until the suspense is lifted. If the State approving agency does not lift the suspense, but disapproves the course instead, new enrollments beginning on or after the date the suspense was effective shall not be approved. See § 21.4259.
(l) Courses taken by a nonmatriculated student who is pursuing a degree. The provisions of this paragraph apply to veterans and eligible persons who are pursuing a degree, but who have not matriculated. The Department of Veterans Affairs considers a student to have matriculated when he or she has been formally admitted to a college or university as a degree-seeking student.
(1) Some colleges or universities admit students provisionally, pending receipt of test results or transcripts. The Department of Veterans Affairs may approve such a veteran’s or eligible person’s enrollment in a course or subject only if the veteran or eligible person matriculates during the first two terms, quarters or semesters following his or her admission.
(2) The first portion of the courses leading to a single degree may be offered at one college or university. The remaining courses are not offered at the college or university, but are offered at a second college or university which grants the degree based upon the combined credits earned by the student. If the student is not required to matriculate during the portion of the program offered at the first college or university, VA may approve an enrollment in a course or subject that is part of that portion of the program only when the certifications described in either paragraph (l)(2)(i) or (ii) of this section are made.
(i) The college or university granting the degree certifies concurrently with the student’s enrollment in the first portion of the program, that
(A) Full credit will be granted for the subjects taken in the portion of the curriculum offered at the first college or university;
(B) In the last 5 years at least three students who have completed the first part of the program have been accepted into the second part of the program;
(C) At least 90 percent of those who have applied for admission to the second part of the program, after successfully completing the first part, have been admitted;
(D) The student will be required to matriculate during the first two terms, quarters or semesters following his or her admission to the second part of the program.
(ii) The college or university offering the first part of the program:
(A) Certifies to the appropriate State approving agency that as a result of an agreement between that college or university and the college or university offering the second part of the program, all of the courses taken by the veteran or eligible person in the first part of the program, will be accepted by the college or university offering the second part of the program without any loss of credit in partial fulfillment of the requirements for an associate or higher degree. This certification may be made once for each program for which an agreement exists.
(B) Certifies to VA that the veteran or eligible person has stated to an appropriate official of the college or university offering the first part of the program that he or she is pursuing the program.
(3) The first portion of the subjects or courses in a baccalaureate program beyond those necessary for an associate degree may be given at a 2-year college, while the remainder may be offered at a 4-year college or university. When the college or university does not require the student to matriculate while pursuing the additional study at the 2-year college, VA may approve an enrollment in a course offered in the program at the 2-year college only if the certifications described in either paragraph (l)(3)(i) or (ii) of this section are made.
(i) The college or university granting the baccalaureate degree certifies that:
(A) Full credit is granted for the course upon the student’s transfer to the college or university granting the baccalaureate degree,
(B) The courses taken at the 2-year college will be acceptable in partial fulfillment for the baccalaureate degree, and
(C) The student will be required to matriculate during the first two terms, quarters or semesters following his or her admission to the college or university granting the baccalaureate degree.
(ii) Either the 2-year college or the college or university granting the baccalaureate degree:
(A) Certifies to the appropriate State approving agency that as a result of agreement between the 2-year college and the college or university offering the baccalaureate degree all of the courses pursued beyond the associate degree will be accepted without any loss of credit in partial fulfillment of the requirements for a baccalaureate degree. This certification may be made once for each program for which an agreement exists.
(B) Certifies to VA that the veteran or eligible person is enrolled in courses covered by the agreement.
(4) Except as provided in paragraphs (l)(1), (2), and (3) of this section, the Department of Veterans Affairs will not approve a veteran’s or eligible person’s enrollment in a course or subject if the veteran or eligible person:
(i) Is pursuing a degree, and
(ii) Is not matriculated.
(5) Nothing in this paragraph shall prevent a State approving agency from including more restrictive matriculation requirements in its approval criteria.
(m) Courses offered under contract. VA may not approve the enrollment of a veteran, servicemember, reservist, or eligible person in a course as a part of a program of education offered by any educational institution if the educational institution or entity providing the course under contract has not obtained a separate approval for the course in the same manner as for any other course as required by § 21.4253, § 21.4254, § 21.4256, § 21.4257, § 21.4260, § 21.4261, § 21.4263, § 21.4264, § 21.4265, § 21.4266, or § 21.4267, as appropriate.
§ 21.4253 Accredited courses.
(a) General. A course may be approved as an accredited course if it meets one of the following requirements:
(1) The course has been accredited and approved by a nationally recognized accrediting agency or association. “Candidate for accreditation” status is not a basis for approval of a course as accredited.
(2) Credit for such course is approved by the State department of education for credit toward a high school diploma.
(3) The course is conducted under the Act of February 23, 1917 (20 U.S.C. 11 et seq.).
(4) The course is accepted by the State department of education for credit for a teacher’s certificate or teacher’s degree.
(5) The course is approved by the State as meeting the requirement of regulations prescribed by the Secretary of Health and Human Services under sections 1819(f)(2)(A)(i) and 1919(f)(2)(A)(i) of the Social Security Act (42 U.S.C.1395i-3(f)(2)(A)(i) and 1396r(f)(2)(A)(i)).
(b) Course objective. Any curriculum offered by an educational institution which is a member of one of the nationally recognized accrediting agencies or associations and which leads to a degree, diploma, or certificate will be accepted as an accredited course when approved as such by the State approving agency. Any curriculum accredited by one of the specialized nationally recognized accrediting agencies or associations and which leads to a degree, diploma, or certificate will also be accepted as an accredited course when approved as such by the State approving agency. Approval of the individual subjects, required or elective, which are designated as a part of a degree curriculum will not be necessary. Such approval may include noncredit subjects that are prescribed as a required part of the curriculum. The course objective may be educational (high school diploma or a standard college degree) or it may be vocational or professional (an occupation).
(c) Accrediting agencies. A nationally recognized accrediting agency or association is one that appears on the list published by the Secretary of Education as required by 38 U.S.C. 3675(a). The State approving agencies may use the accreditation of these accrediting agencies or associations for approval of the course specifically accredited and approved by the agency or association.
(d) School qualification. A school desiring to enroll veterans or eligible persons in accredited courses will make application for approval of such courses to the State approving agency. The State approving agency may approve the application of the school when the school and its accredited courses are found to have met the following criteria and additional reasonable criteria established by the State approving agency if the Secretary or designee, in consultation with the State approving agency, approves the additional criteria as necessary and equitable in its treatment of public, private, and proprietary for-profit educational institutions:
(1) The institution (other than an elementary or secondary school) has submitted to the State approving agency copies of its catalog or bulletin which are certified as true and correct in content and policy by an authorized representative, and the publication shall:
(i) State with specificity the requirements of the institution with respect to graduation;
(ii) Include institution policy and regulations relative to standards of progress required of the student by the institution (this policy will define the grading system of the institution, the minimum grades considered satisfactory, conditions for interruption for unsatisfactory grades or progress, a description of the probationary period, if any, allowed by the institution, conditions of reentrance for those students dismissed for unsatisfactory progress, and a statement regarding progress records kept by the institution and furnished the student);
(iii) Include institution policy and regulations relating to student conduct and conditions for dismissal for unsatisfactory conduct; and
(iv) Include any attendance standards of the institution if the institution has and enforces such standards.
(2) Adequate records are kept by the school to show the progress of each veteran or eligible person. The records must be sufficient to show continued pursuit at the rate for which enrolled and the progress being made. They must include final grade in each subject for each term, quarter, or semester; record of withdrawal from any subject to include the last date of attendance for a resident course; and record of reenrollment in subjects from which there was a withdrawal; and may include such records as attendance for resident courses, periodic grades and examination results.
(3) The school maintains a written record of previous education and training of the veteran or eligible person which clearly indicates that appropriate credit has been given by the school for previous education and training, with the training period shortened proportionately. The record must be cumulative in that the results of each enrollment period (term, quarter or semester) must be included so that it shows each subject undertaken and the final result, i.e., passed, failed, incomplete or withdrawn.
(4) The school enforces a policy relative to standards of conduct and progress required of the student. The school policy relative to standards of progress must be specific enough to determine the point in time when educational benefits should be discontinued, pursuant to 38 U.S.C. 3474 when the veteran or eligible person ceases to make satisfactory progress. The policy must include the grade or grade point average that will be maintained if the student is to graduate. For example, a 4-year college may require a 1.5 grade point average the first year, a 1.75 average at mid-year the second year, and a cumulative average of 2.0 thereafter on the basis of 4.0 for an A.
(5) If the school has a standard of attendance, it maintains records of attendance for veterans and eligible persons enrolled in resident courses which are adequate to show the student meets the school’s standard of attendance.
(6) The accredited courses, the curriculum of which they form a part, and the instruction connected with those courses are consistent in quality, content, and length with similar courses in public educational institutions and other private educational institutions in the State with recognized accepted standards.
(7) There is in the educational institution offering the course adequate space, equipment, instructional material, and instructor personnel to provide training of good quality.
(8) The educational and experience qualifications of directors, and administrators of the educational institution offering the courses, and instructors teaching the courses for which approval is sought, are adequate.
(9)(i) For a course designed to prepare an individual for licensure or certification in a State, the course meets all instructional curriculum licensure or certification requirements of such State.
(ii) For a course designed to prepare an individual for licensure to practice law in a State, the course is accredited by a specialized accrediting agency for programs of legal education or association recognized by the Secretary of Education under subpart 2 of part H of title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from which recipients of law degrees from such accredited programs are eligible to sit for a bar examination in any State.
(iii) For a course designed to prepare an individual for employment pursuant to standards developed by a board or agency of a State in an occupation that requires approval, licensure, or certification, the course meets such standards.
(iv) An educational institution may apply, through their State approving agency of jurisdiction, to the Secretary or designee for a waiver of the requirements of this paragraph (d)(9). The State approving agency will forward an application for waiver, together with its recommendation for granting or denying the application, to the Secretary or designee. The Secretary or designee may grant a waiver upon a finding that all of the following criteria have been met:
(A) The educational institution is not accredited by an agency or association recognized by the Department of Education.
(B) The course did not meet the requirements of this paragraph (d)(9) at any time during the 2-year period preceding the date of the waiver.
(C) The waiver furthers the purposes of the educational assistance programs administered by VA or would further the education interests of individuals eligible for assistance under such programs.
(D) The educational institution does not provide any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to any persons or entities engaged in any student recruiting or admission activities or in making decisions regarding the award of student financial assistance, except for the recruitment of foreign students residing in foreign countries who are not eligible to receive Federal student assistance.
(10) Before requiring a school and its accredited courses to meet any additional criteria, the State approving agency must present a written proposal to the Secretary or designee justifying the need for the additional criteria and containing an attestation that the criteria will treat all schools equitably, regardless of whether they are public, private, or for-profit institutions. The Secretary or designee will determine whether the additional criteria are necessary and treat schools equitably based on the proposal and any additional information submitted. The Secretary or designee may change the determination at any time if, after implementation, it becomes apparent that the criteria are unnecessary or schools are treated inequitably under the criteria.
(i) The written proposal must contain a description of the need for the additional criteria and an explanation of how the imposition of the additional criteria would remedy the problem. The proposal must also contain a statement concerning whether State or Federal laws, regulations, or policies require the imposition of the additional criteria and an explanation of the consideration of any alternative means to achieve the same goal as the additional criteria.
(ii) The Secretary or designee may request such additional information from the State approving agency as the Secretary or designee deems appropriate before determining whether the criteria are necessary and treat schools equitably.
(e) College level. Under the provisions of paragraph (a)(1) of this section, any course at college level approved by the State approving agency as an accredited course will be accepted by the Department of Veterans Affairs as an accredited course when all of the following conditions are met:
(1) The college or university is accredited by a nationally recognized regional accrediting agency listed by the Secretary of Education or the course is accredited at the college level by a specialized accrediting agency or association recognized by the Secretary of Education; and
(2) The course has entrance requirements of not less than the requirements applicable to the college level program of the school; and
(3) Credit for the course is awarded in terms of standard semester or quarter hours or by recognition at completion by the granting of a standard college degree.
(f) Courses not leading to a standard college degree. Any course in a school approved by the State approving agency will be accepted as an accredited course when all of the following conditions are met:
(1) The course or the school offering such course is accredited by the appropriate accrediting agency; and
(2) The course offers training in the field for which the accrediting agency is recognized and at a level for which it is recognized; and
(3) The course leads to a high school diploma or a vocational objective.
§ 21.4254 Nonaccredited courses.
(a) General. Nonaccredited courses are courses which are not approved as accredited courses and which are offered by a public or private, profit or nonprofit, educational institution. These include nonaccredited courses offered by extension centers or divisions, or vocational or adult education departments of institutions of higher learning.
(b) Application. Any school desiring to enroll veterans or eligible persons in nonaccredited courses will submit a written application to the appropriate State approving agency for approval of such courses (38 U.S.C. 3676(a)). Such application will be accompanied by not less than two copies of the current catalog or bulletin which is certified as true and correct in content and policy by an authorized owner or official of the school and will include the following:
(1) Identifying data, such as volume number, and date of publication;
(2) Names of the school and its governing body, officials, and faculty;
(3) A calendar of the school showing legal holidays, beginning and ending date of each quarter, term, or semester, and other important dates;
(4) School policy and regulations on enrollment with respect to enrollment dates and specific entrance requirements for each course;
(5) School policy and regulations relative to leave, absences, class cuts, makeup work, tardiness, and interruptions for unsatisfactory attendance;
(6) School policy and regulations relative to standards of progress required of the student. This policy will define the grading system of the school, the minimum grades considered satisfactory conditions for interruption for unsatisfactory grades or progress, and a description of the probationary period, if any, allowed by the school, and conditions of reentrance for those students dismissed for unsatisfactory progress. A statement will be made regarding progress records kept by the school and furnished the student;
(7) School policy and regulations relating to student conduct and conditions for dismissal for unsatisfactory conduct;
(8) Detailed schedule of fees, charges for tuition, books, supplies, tools, student activities, laboratory fees, service charges, rentals, deposits, and all other charges;
(9) Policy and regulations relative to the refund of the unused portion of tuition, fees, and other charges in the event the student does not enter the course, or withdraws, or is discontinued therefrom;
(10) A description of the available space, facilities, and equipment;
(11) A course outline for each course for which approval is requested, showing subjects or units in the course, type of work, or skill to be learned, and approximate time and clock hours to be spent on each subject or unit; and
(12) Policy and regulations relative to granting credit for previous education and training.
(c) Approval criteria. The appropriate State approving agency may approve the application of such school when the school and its nonaccredited courses are found upon investigation to have met the following criteria:
(1) The courses, curriculum, and instruction are consistent in quality, content, and length with similar recognized accepted standards.
(2) There is in the school adequate space, equipment, instructional material, and instructor personnel to provide training of good quality.
(3) Educational and experience qualifications of directors, administrators, and instructors are adequate.
(4) The school maintains a written record of the previous education and training of the veteran or eligible person and clearly indicates that appropriate credit has been given for previous education and training, with the training period shortened proportionately, and the veteran or eligible person and the Department of Veterans Affairs so notified.
(5) A copy of the course outline, schedule of tuition, fees, and other charges, regulations pertaining to absences, grading policy, and rules of operation and conduct will be furnished the veteran or eligible person upon enrollment.
(6) Upon completion of training, the veteran or eligible person is given a certificate by the school indicating the approved course and indicating that training was satisfactorily completed.
(7) Adequate records as prescribed by the State approving agency are kept to show attendance and progress or grades, and satisfactory standards relating to attendance, progress, and conduct are enforced.
(8) The school complies with all local, city, county, municipal, State, and Federal regulations, such as fire codes, building, and sanitation codes. The State approving agency may require such evidence of compliance as it deemed necessary.
(9) The school is financially sound and capable of fulfilling its commitments for training.
(10) The school does not utilize advertising of any type which is erroneous or misleading, either by actual statement, omission, or intimation. The school will not be deemed to have met this requirement until the State approving agency:
(i) Has ascertained from the Federal Trade Commission whether the Commission has issued an order to the school to cease and desist from any act or practice, and
(ii) Has, if such an order has been issued, given due weight to that fact.
(11) The school does not exceed its enrollment limitations as established by the State approving agency.
(12) The school administrators, directors, owners, and instructors are of good reputation and character.
(13) The school either: (i) Has and maintains a policy for the pro rata refund of the unused portion of tuition, fees and charges if the veteran or eligible person fails to enter the course or withdraws or is discontinued from it before completion, or
(ii) Has obtained a waiver of this requirement. See § 21.4255.
(14)(i) For a course designed to prepare an individual for licensure or certification in a State, the course meets all instructional curriculum licensure or certification requirements of such State.
(ii) For a course designed to prepare an individual for licensure to practice law in a State, the course is accredited by a specialized accrediting agency for programs of legal education or association recognized by the Secretary of Education under subpart 2 of part H of title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from which recipients of law degrees from such accredited programs are eligible to sit for a bar examination in any State.
(iii) For a course designed to prepare an individual for employment pursuant to standards developed by a board or agency of a State in an occupation that requires approval, licensure, or certification, the course meets such standards.
(iv) An educational institution may apply, through their State approving agency of jurisdiction, to the Secretary or designee for a waiver of the requirements of this paragraph (c)(14). The State approving agency will forward an application for waiver, together with its recommendation for granting or denying the application, to the Secretary or designee. The Secretary or designee may grant a waiver upon a finding that all of the following criteria have been met:
(A) The educational institution is not accredited by an agency or association recognized by the Department of Education.
(B) The course did not meet the requirements of this paragraph (c)(14) at any time during the 2-year period preceding the date of the waiver.
(C) The waiver furthers the purposes of the educational assistance programs administered by VA or would further the education interests of individuals eligible for assistance under such programs.
(D) The educational institution does not provide any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to any persons or entities engaged in any student recruiting or admission activities or in making decisions regarding the award of student financial assistance, except for the recruitment of foreign students residing in foreign countries who are not eligible to receive Federal student assistance.
(15) Such additional reasonable criteria as may be deemed necessary by the State approving agency if the Secretary or designee, in consultation with the State approving agency, approves the additional criteria as necessary and equitable in its treatment of public, private, and proprietary for-profit educational institutions. The Secretary or designee will determine whether the additional criteria are necessary and treat schools equitably based on a proposal and any additional information submitted.
(i) Before requiring a school and its nonaccredited courses to meet any additional criteria, the State approving agency must present a written proposal to the Secretary or designee justifying the need for the additional criteria and containing an attestation that the criteria will treat all schools equitably, regardless of whether they are public, private or for-profit institutions. The written proposal must contain a description of the need for the additional criteria and an explanation of how the imposition of the additional criteria would remedy the problem. The proposal must also contain a statement concerning whether State or Federal laws, regulations, or policies require the imposition of the additional criteria and an explanation of the consideration of any alternative means to achieve the same goal as the additional criteria.
(ii) The Secretary or designee may request such additional information from the State approving agency as the Secretary or designee deems appropriate before determining whether the criteria are necessary and treat schools equitably.
(iii) The Secretary or designee may change the determination at any time if, after implementation, it becomes apparent that the criteria are unnecessary or schools are treated inequitably under the criteria.
(d) Limitations on course approval. Notwithstanding any other provision of this section, a State approving agency shall not approve a nonaccredited course if it is to be pursued in whole or in part by independent study.
§ 21.4255 Refund policy; nonaccredited courses.
(a) Acceptable refund policy. A refund policy meets the requirements of § 21.4254(c)(13), if it provides that the amount charged for tuition, fees, and other charges for a portion of the course does not exceed the approximate pro rata portion of the total charges for tuition, fees, and other charges that the length of the completed portion of the course bears to the total length. The school may make provision for refund within the following limitations:
(1) Registration fee. An established registration fee in an amount not to exceed $10 need not be subject to proration. Where the established registration fee is more than $10, the amount in excess of $10 will be subject to proration.
(2) Breakage fee. Where the school has a breakage fee, it may provide for the retention of only the exact amount of the breakage, with the remaining part, if any, to be refunded.
(3) Consumable instructional supplies. Where the school makes a separate charge for consumable instructional supplies, as distinguished from laboratory fees, the exact amount of the charges for supplies consumed may be retained but any remaining part must be refunded.
(4) Books, supplies and equipment. (i) A veteran or eligible person may retain or dispose of books, supplies and equipment at his or her discretion when:
(A) He or she purchased them from a bookstore or other source, and
(B) Their cost is separate and independent from the charge made by the school for tuition and fees.
(ii) The school will make a refund in full for the amount of the charge for unissued books, supplies and equipment when:
(A) The school furnishes the books, supplies and equipment.
(B) The school includes their cost in the total charge payable to the school for the course.
(C) The veteran or eligible person withdraws or is discontinued before completing the course.
(iii) The veteran or eligible person may dispose of issued items at his or her discretion even if they were included in the total charges payable to the school for the course.
(5) Tuition and other charges. Where the school either has or adopts an established policy for the refund of the unused portion of tuition, fees, and other charges subject to proration, which is more favorable to the veteran or eligible person than the approximate pro rata basis as provided in this paragraph, such established policy will be applicable. Otherwise, the school may charge a sum which does not vary more than 10 percent from the exact pro rata portion of such tuition, fees, and other charges that the length of the completed portion of the course bears to its total length. The exact proration will be determined on the ratio of the number of days of instruction completed by the student to the total number of instructional days in the course.
(6) Prompt refund. In the event that the veteran, spouse, surviving spouse or child fails to enter the course or withdraws or is discontinued therefrom at any time prior to completion of the course, the unused portion of the tuition, fees and other charges paid by the individual shall be refunded promptly. Any institution which fails to forward any refund due within 40 days after such a change in status, shall be deemed, prima facie, to have failed to make a prompt refund, as required by this paragraph.
(b) Waiver. (1) An educational institution may apply through the appropriate State approving agency to the Director of the VA facility of jurisdiction for a waiver of the requirements of paragraph (a) of this section as they apply to a veteran or eligible person. The State approving agency shall forward the application to the Director along with its recommendations. The Director shall consider the recommendations and shall grant a waiver only when he or she finds that the educational institution:
(i) Is a college, university, or similar institution offering post-secondary level academic instruction leading to an associate or higher degree;
(ii) Is operated by an agency of a State or a unit of local government;
(iii) If operated by an agency of a State, is located within that State;
(iv) If operated by a unit of local government, is located within the boundaries of the area over which that unit has taxing jurisdiction;
(v) Is a candidate for accreditation by a regional accrediting agency; and
(vi) Charges the veteran or eligible person no more than $120 per quarter, $180 per semester or $360 per school year in tuition, fees and other charges for the course.
(2) If an educational institution disagrees with a decision of a Director of a VA facility, it may ask that the Director, Education Service review the decision. In reviewing the decision the Director must consider the evidence of record. He or she may not grant a waiver unless all the criteria of paragraph (b)(1) of this section are met.
§ 21.4256 Correspondence programs and courses.
(a) Approval of correspondence programs and courses. (1) An educational institution desiring to enroll veterans under 38 U.S.C. chapter 30 or 32, spouses and/or surviving spouses under 38 U.S.C. chapter 35, and/or reservists under 10 U.S.C. chapter 1606 in a program of education to be pursued exclusively by correspondence, or in the correspondence portion of a combination correspondence-residence course, may have the program or course approved only when the educational institution meets the requirements of §§ 21.4252(e), 21.4253, and 21.4279, as applicable.
(2) The application of an educational institution for approval of a program of education to be pursued exclusively by correspondence or the correspondence portion of a combined correspondence-residence course must demonstrate that the program or course is satisfactory in all elements. The educational institution must certify to the State approving agency that at least 50 percent of those pursuing the program or course require six months or more to complete it. For applications for approval that are pending approval by the State approving agency on February 2, 1995, and for applications received by the State approving agency after that date, the required certification shall be based on the experience of students who completed the program or course during the six-month period immediately preceding the educational institution’s application for approval.
(3) State approving agencies have the authority to review periodically the length of time needed to complete each approved correspondence program or approved correspondence-residence course in order to determine whether the program or course should continue to be approved. In implementing this authority, a State approving agency will examine the results over a prior two-year period reasonably related to the date on which such a review is conducted.
(b) Enrollment agreement. (1) An educational institution offering a program of education to be pursued exclusively by correspondence must enter into an enrollment agreement with the veteran, spouse, surviving spouse, or reservist who wishes to receive educational assistance from VA while pursuing the program. The enrollment agreement shall disclose fully the obligations of the institution and the veteran, spouse, surviving spouse, or reservist, and shall display in a prominent place on the agreement the conditions for affirmance, termination, refund, and payment of the educational assistance by VA.
(2) A copy of the agreement shall be given to the veteran, spouse, surviving spouse, or reservist when it is signed.
(3) The agreement shall not be effective unless the veteran, spouse, surviving spouse, or reservist after the expiration of 10 days after the agreement is signed, shall have signed and submitted to VA a written statement, with a signed copy to the institution, specifically affirming the agreement.
(c) Mandatory refund policy. (1) Upon notification of the educational institution by the veteran, spouse, surviving spouse, or reservist of an intention not to affirm the enrollment agreement, any fees paid by the individual shall be returned promptly in full to him or her.
(2) Upon termination of enrollment under an affirmed enrollment agreement for training in the accredited course by the veteran, spouse, surviving spouse, or reservist, without having completed any lessons, a registration fee not in excess of 10 percent of the tuition for the course or $50, whichever is less, may be charged him or her. When the individual terminates the agreement after completion of less than 25 percent of the lessons of the course, the institution may retain the registration fee plus 25 percent of the tuition. When the individual terminates the agreement after completing 25 percent but less than 50 percent of the lessons, the institution may retain the registration fee plus 50 percent of the tuition for the course. If 50 percent or more of the lessons are completed, no refund of tuition is required.
(3) Where the school either has or adopts an established policy for the refund of the unused portion of tuition, fees, and other charges subject to proration, which is more favorable to the veteran, spouse, surviving spouse, or reservist than the pro rata basis as provided in paragraph (b)(2) of this section, such established policy will be applicable.
(4) Any institution that fails to forward any refund due to the veteran, spouse, surviving spouse, or reservist within 40 days after receipt of a notice of termination or disaffirmance, shall be deemed, prima facie, to have failed to make a prompt refund as required by this section.
§ 21.4257 Cooperative courses.
A cooperative course may be approved when the course meets the requirement of § 21.4233(a).
§ 21.4258 Notice of approval.
(a) General; letter of approval and other notice of approval requirements. The State approving agency, upon determining that an educational institution, training establishment, or organization or entity offering a licensing or certification test has complied with all the requirements for approval will –
(1) Notify by letter, as described in paragraph (b) of this section, each such educational institution, training establishment, or organization or entity offering a licensing or certification test; and
(2) Furnish VA an official copy of the letter, any attachments, and any subsequent amendments. In addition, the State approving agency will furnish VA a copy of each such –
(i) Educational institution’s approved catalog or bulletin;
(ii) Training establishment’s application requesting approval; or
(iii) Organization’s or entity’s candidate handbook.
(b) Contents of letter of approval. The letter of approval will include the following:
(1) For an educational institution: (i) Date of the letter and effective date of approval of courses;
(ii) Proper address and name of the educational institution;
(iii) Authority for approval and conditions of approval, referring specifically to the approved catalog or bulletin;
(iv) Name of each course approved, except that a State approving agency, in lieu of listing the name of each course approved at an institution of higher learning, may identify approved courses by reference to page numbers in the school catalog or bulletin;
(v) Where applicable, enrollment limitations, such as maximum number of students authorized and student-teacher ratio;
(vi) Signature of responsible official of State approving agency; and
(vii) Such other fair and reasonable provisions as are considered necessary by the appropriate State approving agency.
(2) For a training establishment: (i) Date of the letter and effective date of approval of the apprentice or other on-the-job training;
(ii) Proper address and name of the training establishment;
(iii) Authority for approval and conditions of approval;
(iv) Name of the approved program of apprenticeship or other on-the-job training;
(v) Where applicable, enrollment limitations, such as maximum number of trainees authorized;
(vi) Such other fair and reasonable provisions as are considered necessary by the appropriate State approving agency; and
(vii) Signature of responsible official of State approving agency.
(3) For an organization or entity offering a licensing or certification test:
(i) Date of the letter and effective date of approval of test(s);
(ii) Proper name of the organization or entity offering the licensing or certification test(s);
(iii) Name of each test approved indicating whether it is a licensing test or certification test;
(iv) Where applicable, enrollment limitations such as maximum numbers authorized and test taker-test proctor ratio; and
(v) Signature of responsible official of State approving agency.
(c) Compliance with equal opportunity laws. (1) The State approving agency shall solicit assurance of compliance with:
(i) Title VI, Civil Rights Act of 1964,
(ii) Title IX, Education Amendments of 1972, as amended,
(iii) Section 504, Rehabilitation Act of 1973,
(iv) The Age Discrimination Act of 1975, and
(v) All Department of Veterans Affairs regulations adopted to carry out these laws.
(2) The State approving agency shall solicit this assurance from:
(i) Proprietary vocational, trade, technical, or other institutions and such schools not a part of a public elementary or secondary school.
(ii) All other educational institutions which the Department of Education has not determined to be in compliance with the equal opportunity laws listed in paragraph (c)(1) of this section.
(3) Whenever a State approving agency forwards to VA a Notice of Approval for a course offered by an institution described in paragraph (c)(2) of this section, it shall also forward the institution’s signed statement of compliance with these equal opportunity laws.
§ 21.4259 Suspension or disapproval.
(a) The appropriate State approving agency, after approving any course or licensing or certification test:
(1) May suspend the approval of a course for new enrollments, or approval of a licensing or certification test, for a period not to exceed 60 days to allow the institution to correct any deficiencies, if the evidence of record establishes that the course or licensing or certification test fails to meet any of the requirements for approval.
(2) Will immediately disapprove the course or licensing or certification test, if any of the requirements for approval are not being met and the deficiency cannot be corrected within a period of 60 days.
(3) Upon suspension or disapproval, the State approving agency will notify the educational institution by certified or registered letter with a return receipt secured (38 U.S.C. 3679). It is incumbent upon the State approving agency to determine the conduct of courses and to take immediate appropriate action in each case in which it is found that the conduct of a course in any manner fails to comply with the requirements for approval.
(b) Each State approving agency will immediately notify VA of each course, or licensing or certification test, that it has suspended or disapproved.
(c) The Department of Veterans Affairs will suspend approval for or disapprove courses or licensing or certification tests under conditions specified in paragraph (a) of this section where it functions for the State approving agency. See § 21.4150(c).
(d) The Department of Veterans Affairs will immediately notify the State approving agency in each case of Department of Veterans Affairs suspension or disapproval of any school under 38 U.S.C. chapter 31.
(e) The Secretary or the appropriate State approving agency will disapprove a licensing and certification program of education if the educational institution providing the program of education fails to publicly disclose in a prominent manner any conditions or additional requirements, including training, experience, or examinations required to obtain the license, certification, or approval for which the program of education is designed to provide preparation.
(1) The Secretary will determine whether a disclosure is sufficiently prominent; however, at a minimum, the educational institution must publish the conditions or requirements on a publicly facing website and in their catalog, and include them in any publication (regardless of medium) which explicitly mentions “educational assistance benefits for servicemembers (and their dependents) or veterans (and their dependents)” or which, in the view of the Secretary, is intended for VA educational assistance beneficiaries.
(2) Individuals continuously enrolled at the same educational institution pursuing a program of education subject to disapproval under paragraph (e) of this section may complete the program of education.
§ 21.4260 Courses in foreign countries.
(a) Approval of postsecondary courses in foreign countries. (1) In order to be approved a postsecondary course offered in a foreign country must meet all the provisions of this paragraph. A course offered by a foreign medical school (other than one located in Canada) must also meet all of the provisions of paragraph (b) of this section.
(i) The educational institution offering the course is an institution of higher learning, and
(ii) The course leads to a standard college degree or its equivalent.
(2) For the purpose of this paragraph, a degree is the equivalent of a standard college degree when the program leading to the degree has the same entrance requirements as one leading to a degree granted by a public degree-granting institution of higher learning in that country.
(b) Approval of courses offered by a foreign medical school. In addition to meeting all the criteria stated in paragraph (a) of this section, a course offered by a foreign medical school (other than one located in Canada) must also meet all of the following criteria:
(1) The school satisfies the criteria for listing as a medical school in the World Directory of Medical Schools published by the World Health Organization (WHO).
(2) The evaluating bodies (such as medical associations or educational agencies) whose views are considered relevant by the Director, Education Service, and which are located in the same country as the school –
(i) Recognize the school as a medical school, and
(ii) Approve the school.
(3) The school provides, and in the normal course requires its students to complete, a program of clinical and classroom instruction at least 32 months long. This program must be –
(i) Supervised closely by members of the school’s faculty, and
(ii) Provided either.
(A) Outside the United States in facilities adequately equipped and staffed to afford students comprehensive clinical and classroom medical instruction, or
(B) Inside the United States, through a training program for foreign medical students which has been approved by all the medical licensing boards and evaluating bodies whose views are considered relevant by the Director, Education Service.
(4) The school has graduated classes during each of the two 12-month periods immediately preceding the date on which VA receives the school’s application for approval of its courses.
(5) The Director, Education Service, shall withdraw approval of any course when the course or the school offering it fails to meet any of the approval criteria in this section or in Chapter 36, Title 38 U.S.C.
(6) In making the decisions required by this paragraph, the Director, Education Service, may consult with the Secretary of Education. The Director may review any information about a foreign medical school which the Secretary may make available.
(c) Approval of enrollments in foreign courses. (1) Except as provided in paragraph (c)(2) of this section, the Department of Veterans Affairs will approve the enrollment of a veteran or eligible person in a course offered by an educational institution not located in a State when –
(i) The eligible person, serviceperson, veteran, or reservist meets the eligibility and entitlement requirements of either §§ 21.3040 through 21.3046, §§ 21.5040 and 21.5041, §§ 21.7040 through 21.7045, or § 21.7540, as appropriate;
(ii) The eligible person’s, serviceperson’s, veteran’s, or reservist’s program of education meets the requirements of either § 21.3021(h), § 21.5230, § 21.7020(b)(23), or § 21.7520(b)(17), as appropriate; and
(iii) The course meets the requirements of this section and all other applicable VA regulations.
(2) VA may deny or discontinue the payment of educational assistance allowance to a veteran, serviceperson, eligible person or reservist pursuing a course in an institution of higher learning not located in a State when VA finds that the veteran’s, serviceperson’s, eligible person’s, or reservist’s enrollment is not in his or her best interest or the best interest of the Federal Government.
§ 21.4261 Apprentice courses.
(a) General. An apprentice course is any training on-the-job course which has been established as an apprentice course by a training establishment as defined in § 21.4200(c) and which has been approved as an apprentice course by the State approving agency.
(b) Application. Any training establishment desiring to furnish a course of apprentice training will submit a written application to the appropriate State approving agency setting forth the following:
(1) Title and description of the specific job objective for which the veteran or eligible person is to be trained;
(2) The length of the training period;
(3) A schedule listing various operations for major kinds of work or tasks to be learned and showing for each job operations or work, tasks to be performed, and the approximate length of time to be spent on each operation or task;
(4) The number of hours of supplemental related instruction required; and
(5) Any additional information required by the State approving agency.
(c) Approval criteria. The appropriate State approving agency may approve a course of apprentice training when the training establishment and its apprentice courses are found upon investigation to have met the following criteria:
(1) The standards of apprenticeship published by the Secretary of Labor pursuant to 29 U.S.C. 50a;
(2) A signed copy of the training agreement for each veteran or eligible person, making reference to the training program and wage schedule as approved by the State approving agency, is provided to the veteran or eligible person and the Department of Veterans Affairs and the State approving agency by the employer; and
(3) The course meets such other reasonable criteria as may be established by the State approving agency.
(d) Promotion. As funding permits, Department of Veterans Affairs employees will promote the development of apprenticeships. They will:
(1) Visit employers and joint apprenticeship committees,
(2) Coordinate their efforts with activities of any State approving agencies that may choose to promote the development of apprenticeships, and
(3) Avoid duplicating the efforts of others by coordinating their promotional efforts with similar activities of the Department of Labor and State employment security agencies as provided by written agreements covering these activities, including utilization of disabled veterans’ outreach program specialists.
§ 21.4262 Other training on-the-job courses.
(a) General. An “other training on-the-job” course is any training on the job which does not qualify as an apprentice course, as defined in § 21.4261, but which otherwise meets the requirements of paragraph (c) of this section.
(b) Application. Any training establishment desiring to furnish a course of other training on-the-job will submit to the appropriate State approving agency a written application setting forth the following:
(1) Title and description of the specific job objective for which the veteran or eligible person is to be trained;
(2) The length of the training period;
(3) A schedule listing various operations for major kinds of work or tasks to be learned and showing for each job operations or work, tasks to be performed, and the approximate length of time to be spent on each operation or task;
(4) The number of hours of supplemental related instruction required;
(5) The entrance wage or salary paid by the training establishment to employees already trained in the kind of work for which the veteran or eligible person is to be trained;
(6) A certification that the wages to be paid the veteran or eligible person upon entrance into training are not less than wages paid nonveterans in the same training position and are at least 50 percent of the wages paid for the job for which he or she is to be trained, and will be increased in regular periodic increments until, not later than the last full month of the scheduled training period they will be at least 85 percent of the wages paid for the job for which the veteran or eligible person is being trained;
(7) A certification that there is reasonable certainty that the job for which the veteran or eligible person is to be trained will be available to him or her at the end of the training period; and
(8) Any additional information required by the State approving agency.
(c) Approval criteria. The appropriate State approving agency may approve the application submitted under paragraph (b) of this section, when the training establishment and its courses are found upon investigation to have met the criteria outlined in this paragraph. Approval will not be granted for training in occupations which require a relatively short period of experience for a trainee to obtain and hold employment at the market wage in the occupation. This includes occupations such as automobile service station attendant or manager, soda fountain attendant, food service worker, salesman, window washer, building custodian or other unskilled or common labor positions as well as clerical positions for which on-the-job training is not the normal method of procuring qualified personnel.
(1) The job which is the objective of the training is one in which progression and appointment to the next higher classification are based upon skills learned through organized and supervised training on-the-job and not on such factors as length of service and normal turnover;
(2) The training content of the course is adequate to qualify the veteran or eligible person for appointment to the job for which he or she is to be trained;
(3) The job customarily requires a period of training of not less than 6 months and not more than 2 years of full-time training;
(4) The length of the training period is not longer than that customarily required by the training establishments in the community to provide the veteran or eligible person with the required skills, arrange for the acquiring of job knowledge, technical information, and other facts which the veteran or eligible person will need to learn in order to become competent on the job for which he or she is being trained;
(5) Provision is made for related instruction for the individual veteran or eligible person who may need it;
(6) There is in the training establishment adequate space, equipment, instructional material, and instructor personnel to provide satisfactory training on-the-job;
(7) Adequate records are kept to show the progress made by each veteran or eligible person toward his or her job objective;
(8) The veteran or eligible person is not already qualified by training and experience for the job;
(9) The requirements of paragraphs (b)(6) and (7) of this section are met;
(10) A signed copy of the training agreement for each veteran or eligible person, including the training program and wage schedule as approved by the State approving agency, is provided to the veteran or eligible person and the Department of Veterans Affairs and the State approving agency by the employer; and
(11) The course meets such other reasonable criteria as may be established by the State approving agency.
(d) Promotion. As funding permits, Department of Veterans Affairs employees will promote the development of on-the-job training courses. They will:
(1) Visit employers,
(2) Coordinate their efforts with activities of any State approving agencies that may choose to promote the development of on-the-job training courses, and
(3) Avoid duplicating the efforts of others by coordinating their promotional efforts with similar activities of the Department of Labor and State employment security agencies as provided by written agreements covering these activities, including utilization of disabled veterans’ outreach program specialists.
§ 21.4263 Approval of flight training courses.
(a) A flight school or institution of higher learning are the only entities that can offer flight courses. A State approving agency may approve a flight course only if a flight school or an institution of higher learning offers the course. A State approving agency may not approve a flight course if an individual instructor offers it. The provisions of § 21.4150 shall determine the proper State approving agency for approving a flight course.
(b) Definition of flight school. A flight school is a school, other than an institution of higher learning, or is an entity, such as an aero club; is located in a State; and meets one of the following sets of requirements:
(1) The Federal Aviation Administration has issued the school or entity either a pilot school certificate or a provisional pilot school certificate specifying each course the school is approved to offer under 14 CFR part 141;
(2) The entity is either a flight training center or an air carrier that does not have a pilot school certificate or provisional pilot school certificate issued by the Federal Aviation Administration under 14 CFR part 141, but pursuant to a grant of exemption letter issued by the Federal Aviation Administration under 14 CFR part 61 is permitted to offer pilot training by a flight simulator instead of an actual aircraft; or
(3) The Federal Aviation Administration has issued the school or entity a training center certificate under 14 CFR part 142.
(c) Aero club courses. An aero club, established, formed, and operated under authority of service department regulations as a nonappropriated sundry fund activity, is an instrumentality of the Federal government. Consequently, VA has exclusive jurisdiction over approval of flight courses offered by such aero clubs.
(d) Approval of flight training as part of a degree program. A State approving agency may approve a flight training course that is part of a program of education leading to a standard college degree provided the course and program meet the requirements of § 21.4253 or § 21.4254, as appropriate. The institution of higher learning offering the course need not be a flight school.
(e) Approval of flight training courses that are not part of a degree program. A flight course is subject to the same approval requirements as any other course. In addition, the State approving agency must apply the following provisions to the approval of flight courses:
(1) The Federal Aviation Administration must approve the course; and
(2)(i) The course must meet the requirements of 14 CFR part 63 or 141, and a flight school described in paragraph (b)(1) or (b)(3) of this section must offer it; or
(ii) The course must meet the requirements of 14 CFR part 61, and either be offered –
(A) By a flight school described in paragraph (b)(3) of this section; or
(B) In whole or in part by a flight simulator pursuant to a grant of exemption letter issued by the Federal Aviation Administration to the flight school offering the course.
(f) Application of 38 U.S.C. 3680A(e)(2) to flight training. Notwithstanding the fact that the Federal Aviation Administration will permit flight schools to conduct training at a base other than the main base of operations if the requirements of either 14 CFR 141.91 or 14 CFR 142.17 are met, the satellite base is considered under 38 U.S.C. 3680A(e)(2) to be a branch of the principal school, and must meet the requirements of 38 U.S.C. 3680A(e)(2).
(g) Providing a flight course under contract between schools or entities. When a school or entity offers all or part of a flight course under a contract with another school or entity, the State approving agency must apply § 21.4233 in the following manner:
(1) The requirements of § 21.4233(e) must be met for all contracted flight instruction, instruction by flight training device, flight simulator instruction, and ground school training. Ground school training may be given through a ground school facility operated jointly by two or more flight schools in the same locality; and
(2) The responsibility for providing the instruction lies with the flight school. The degree of affiliation between the flight school and the entity or other school that actually does the instructing must be such that all charges for instruction are made by, and paid to, one entity having jurisdiction and control over both the flight and ground portions of the program.
(h) Nonaccredited courses – (1) Application of § 21.4254 to flight training. The provisions of § 21.4254 are applicable to approval of flight training courses.
(2) Additional instruction requirements. The State approving agency will apply the following additional requirements to a flight course:
(i) All flight instruction, instruction by flight training device, flight simulator instruction, preflight briefings and postflight critiques, and ground school training in a course must be given by the flight school or under suitable arrangements between the school and another school or entity such as a local community college.
(ii) All ground school training connected with the course must be in residence under the direction and supervision of a qualified instructor providing an opportunity for interaction between the students and the instructor. Simply making provision for having an instructor available to answer questions does not satisfy this requirement.
(3) A flight school must keep at a minimum the following records for each eligible veteran, servicemember, or reservist pursuing flight training:
(i) A copy of his or her private pilot certificate;
(ii) Evidence of completion of any prior training that may be a prerequisite for the course;
(iii) A copy of the medical certificate required by paragraph (a)(2) of this section for the courses being pursued and copies of all medical certificates (expired or otherwise) needed to support all periods of prior instruction received at the current school;
(iv) A daily flight log or copy thereof;
(v) A permanent ground school record;
(vi) A progress log;
(vii) An invoice of flight changes for individual flights or flight lessons for training conducted on a flight simulator or advanced flight training device;
(viii) Daily flight sheets identifying records upon which the 85-15 percent ratio may be computed;
(ix) A continuous meter record for each aircraft;
(x) An invoice or flight tickets signed by the student and instructor showing hour meter reading, type of aircraft, and aircraft identification number;
(xi) An accounts receivable ledger;
(xii) Individual instructor records;
(xiii) Engine log books;
(xiv) A record for each student above the private pilot level stating the name of the course in which the student is currently enrolled and indicating whether the student is enrolled under 14 CFR part 61, part 63, part 141, or part 142;
(xv) Records of tuition and accounts which are evidence of tuition charged and received from all students; and
(xvi) If training is provided under 14 CFR part 141, the records required by that part, or if training is provided under 14 CFR part 142, the records required by that part.
(i) Hourly limitations. A flight course approved pursuant to paragraph (e) of this section shall be approved only for those hours of instruction generally considered necessary for a student to obtain an identified vocational objective. This requirement is met only if the number of hours approved does not exceed the maximum set forth in paragraph (i)(1) through (3) of this section. Flight instruction may never be substituted for ground training.
(1) Flight or flight simulator instruction. Except as provided in paragraph (i)(4) of this section, the maximum number of hours of flight instruction or flight simulator instruction which may be approved for a flight course shall not exceed the number determined by this paragraph.
(i) The maximum number of hours of solo flight instruction shall not exceed the minimum number of hours required for the course provided by FAA regulations.
(ii) The maximum number of hours of dual flight instruction shall not exceed the lesser of –
(A) The number of hours of dual flight instruction in the course outline approved by the FAA, or
(B) 120% of the minimum number of hours of dual flight instruction required for the course by FAA regulations.
(iii) The maximum number of hours of instruction by flight simulator or flight training device that a State approving agency may approve is the maximum number of hours of instruction by flight simulator or flight training device permitted by 14 CFR part 61 for that course when:
(A) A course is offered in whole or in part by flight simulator or flight training device conducted by a training center certificated under 14 CFR part 142; and
(B) 14 CFR part 61 contains a maximum number of hours of instruction by flight simulator or flight training device that may be credited toward the requirements of the rating or certificate that is the objective of the course.
(iv) If a course is offered in whole or in part by flight simulator or flight training device, and the course is not described in paragraph (i)(1)(iii) of this section, either because the course is offered by a flight training center with a grant of exemption letter, or because 14 CFR part 61 does not contain a maximum number of hours of instruction by flight simulator or flight training device, the maximum number of hours of instruction by flight simulator or flight training device that may be approved may not exceed the number of hours in the Federal Aviation Administration-approved outline.
(2) Ground school. The ground training portion of a flight course may include two forms of ground training instruction, ground school and preflight briefings and postflight critiques. The minimum hours for ground training, as specified in 14 CFR part 141, appendixes C through J refer only to ground school and not to preflight briefings and postflight critiques. If the ground school training consists of units using kits containing audiovisual equipment, quizzes and examinations, the maximum number of units approved shall not exceed the number on the course outline approved by the FAA. For all other ground school training, the number of hours of training shall not exceed the number of hours on the course outline approved by the FAA.
(3) Preflight briefings and postflight critiques. Hours spent in preflight briefings and postflight critiques need not be approved by the FAA.
(i) If these hours are on the FAA-approved outline, the maximum number of hours of preflight briefings and postflight critiques shall not exceed the number of hours on the outline exclusive of the preflight briefings and post-flight critiques which are attributable to solo flying hours that exceed the minimum number of solo flying hours for the course in 14 CFR part 141.
(ii) If these hours are not on the FAA-approved outline, they may not be approved unless the State approving agency finds that the briefings and critiques are an integral part of the course and do not precede or follow solo flying hours which exceed the minimum number of solo flying hours for the course in 14 CFR part 141. The maximum number of hours of preflight briefings and postflight critiques which may be approved for these courses may not, when added together, exceed 25 percent of the approved hours of flight instruction.
(4) Waiver of limitation in approvable course hours. (i) Flight schools that wish to have a greater number of hours of dual flight instruction approved than are permitted by paragraph (i)(1)(ii) of this section, may seek an administrative review of their approval by the Director, Education Service. Requests for such a review should be made in writing to the Director of the VA facility having jurisdiction over the flight school. The request should –
(A) State the reasons why the flight school believes that the approval should extend to a greater number of hours, and
(B) Include any evidence tending to show that the greater number of hours should be approved.
(ii) The Director, Education Service shall base her or his decision upon the evidence submitted, the recommendation of the Director of the VA facility, and, if appropriate, the recommendation of the State approving agency having jurisdiction over the flight school.
(iii) The limit on the number of hours of solo flight instruction found in paragraph (i)(1)(i) of this section may not be waived.
(j) Charges. The appropriate State approving agency shall approve charges for tuition and fees for each flight course exclusive of charges for tuition and fees for solo flying hours which exceed the maximum permitted under paragraph (i)(1)(i) of this section and for preflight briefings and postflight critiques which precede or follow the excess solo hours.
(1) The approved charges for tuition and fees shall be based upon the charges for tuition and fees which similarly circumstanced nonveterans enrolled in the same flight course are required to pay. Charges for books, supplies and lodging may not be reimbursed.
(2) For the ground school portion of ground training, the State approving agency should approve group charges or unit prices if audio-visual equipment is used. For the preflight briefings and postflight critiques, the State approving agency should approve individual instructor rates for individual training flights. An average charge per hour based upon total hours and cost of all training given on the ground may not be approved.
(3) A veteran, servicemember or reservist or group (all or part of whom are veterans, servicemembers or reservists) owning an airplane may lease it to an approved flight school and have exclusive use of the aircraft for flight training. The aircraft should meet the requirements prescribed for all airplanes to be used in the course, and should be shown in the approval by the State approving agency. The leasing arrangement should not result in charges for flight instruction for those owning the airplane greater than charges made to others not leasing an aircraft to the school.
(4) If membership in a flight club entitles a veteran, servicemember or reservist to flight training at less than the standard rate, his or her educational allowance will be based on the reduced rate. No payments will be made for the cost of joining the flight club, since it is not a charge for the flight course.
(k) Substitute aircraft. Except for minor substitutions a veteran, servicemember or reservist enrolled in a flight course may train only in the aircraft approved for that course. If a particular aircraft is not available for some compelling reason, the veteran, servicemember or reservist may be permitted to train in an aircraft different from that approved for the particular course, provided the aircraft substituted will adequately meet the training requirements for this particular phase of the course. Substitutions should be explained on the monthly certifications of flight training. If this shows that the charge for the substituted aircraft is different from the charge approved for the regular aircraft, the reimbursement will be based on the lesser charge. When substitution becomes the practice rather than the exception, VA will suspend payments and notify the veterans, servicemembers, reservists and the school. VA will refer the matter to the State approving agency for appropriate action.
(l) Enrollment limitations. A flight course must meet the 85-15 percent ratio requirement set forth in § 21.4201 before VA may approve new enrollments in the course. The contracted portion of a flight course must meet all the requirements of § 21.4201 for each subcontractor.
§ 21.4264 Farm cooperative courses.
(a) Description of a farm cooperative course. A farm cooperative course is an institutional agricultural course. It provides training on a reduced basis to those engaged in farming, compared to other types of training. Part-time benefits are provided for students whose farming operation will not permit them to attend class at least 10 hours per week.
(b) Farm cooperative students must be farmers. In order to receive educational assistance allowance an eligible person must be engaged concurrently in agricultural employment for an average of at least 40 hours per week. This agricultural employment must be relevant to the farm cooperative course.
(c) Acceptable class schedules. (1) The institutional portion of a farm cooperative course:
(i) May be on a term, quarter or semester basis, or
(ii) May consist of courses which:
(A) Are offered during at least 44 weeks of the year, and
(B) Require a minimum of 5 clock hours per week.
(2) The time involved in field trips and individual and group instruction, sponsored and conducted by the educational institution offering farm cooperative courses may be counted toward meeting the clock-hour requirements. See § 21.4270(c) of this part for measurement of farm cooperative courses.
(d) Application. (1) Any school desiring to enroll spouses or children in farm cooperative courses:
(i) Will submit to the appropriate State approving agency a written application for approval in accordance with § 21.4253 or § 21.4254 as appropriate; and
(ii) Must submit statements of fact showing at least the following:
(A) That the course is set up in the school catalog or other literature of the school;
(B) That the agricultural course is offered concurrently with agricultural employment; and
(C) That the school itself verifies on a continuing basis that students are engaged for an average of at least 40 hours per week in suitable agricultural employment which is relevant to the institutional agricultural course offered by the school and is in an area consistent with their institutional training program.
(2) For the purposes of this paragraph suitable agricultural employment must include employment on a farm or other agricultural establishment where the basic activity is either:
(i) The cultivation of the ground such as the raising and harvesting of crops including fruits, vegetables and pastures, or
(ii) The feeding, breeding and managing of livestock, including poultry and other specialized farming.
(3) The Department of Veterans Affairs does not consider employment in training establishments which are engaged primarily in the processing, distribution or sale of agricultural products or combinations thereof, such as dairy processing plants, grain elevators, packing plants, hatcheries, stockyards or florists shops to be suitable agricultural employment.
(e) Approval criteria. The appropriate State approving agency may approve the school’s application when the agency finds upon investigation that the school and its courses have met the following conditions:
(1) The criteria specified in § 21.4253 or § 21.4254, as appropriate; and
(2) The requirements of paragraph (d) of this section.
§ 21.4265 Practical training approved as institutional training or on-job training.
(a) Medical-dental internships and residencies. (1) Medical residencies (other than residencies in podiatric medicine), dental residencies, and osteopathic internships and residencies may be approved and recognized as institutional courses only when an appropriate accrediting agency accredits and approves them as leading to certification for a recognized professional objective.
(2) The appropriate accrediting agencies are:
(i) The Accreditation Council for Graduate Medical Education, or where the Accreditation Council for Graduate Medical Education has delegated accrediting authority, the appropriate Residency Review Committee,
(ii) The American Osteopathic Association, and
(iii) The Commission on Dental Accreditation of the American Dental Association.
(3) These residency programs –
(i) Must lead to certification by an appropriate Specialty or Subspecialty Board, the American Osteopathic Association, or the American Dental Association; and
(ii) Will not be approved to include a period of practice following completion of the education requirements even though the accrediting agency requires the practice.
(4) Except as provided in paragraph (a)(5) of this section, no other medical or dental residency or osteopathic internship or residency will be approved or recognized as institutional training.
(5) A residency in podiatric medicine may be approved and recognized as institutional training only when it has been approved by the Council on Podiatry Education of the American Podiatry Association.
(b) Nursing courses. (1) Courses for the objective of registered nurse or registered professional nurse will be assessed as institutional training when they are provided in autonomous schools of nursing, hospital schools of nursing, or schools of nursing established in other schools or departments of colleges and universities, if they are accredited by a nationally recognized accrediting agency or if they meet the requirements of the licensing body of the State in which the school is located. The hospital or fieldwork phase of a nursing course, including a course leading to a degree in nursing, will be assessed as an institutional course when the hospital or fieldwork phase is an integral part of the course, the completion thereof is a prerequisite to the successful completion of the course, the student remains enrolled in the school during the period, and the training is under the direction and supervision of the school.
(2) Courses offered by schools which lead to the objective of practical nurse, practical trained nurse, or licensed practical nurse will be assessed as institutional training including both the academic subjects and the clinical training if the clinical training is offered by an affiliated or cooperating hospital and the student is enrolled in and supervised by the school during the period of such clinical training. Also they must be accredited by a nationally recognized accrediting agency or meet the requirements of the licensing body of the State in which the school is located.
(3) Except for enrollment in a nurse’s aide course approved pursuant to § 21.4253(a)(5), VA shall not approve an enrollment in a nonaccredited nursing course which does not meet the licensing requirements of the State where the course is offered.
(c) Medical and dental specialty courses. (1) Required clinical training included in a school course given in an affiliated hospital, clinic, laboratory, or medical center as a part of a medical or dental specialty course whether accredited or nonaccredited offered by a school such as X-ray technician, medical technician, medical records administrator, physical therapist or dental technician shall be assessed as institutional training provided:
(i) The student remains enrolled in the course during the clinical period;
(ii) The clinical training is;
(a) An integral part of the course;
(b) A prerequisite to the successful completion of the course; and
(c) Under the direction and supervision of the school; and
(iii) The course includes substantial technical or professional training and does not consist of training preliminarily directed to clerical, administrative, secretarial, or receptionist duties.
(2) Medical and dental specialty courses offered in hospitals, clinics, laboratories, or medical centers which are accredited as institutional courses by a nationally recognized accrediting agency will be assessed as institutional training.
(3) Clinical training included in a school course given in a physician’s office or a dentist’s office, also called externship, will be recognized as part of the institutional training if the course is accredited by a nationally recognized accrediting agency and meets the other requirements of paragraph (c)(1) of this section. If the course is not so accredited such practical or on-the-job training or experience in a physician’s office may not be included unless the program is approved as a cooperative course.
(4) Nonaccredited courses offered in hospitals, clinics, laboratories, or medical centers will be considered on-the-job training when the courses meet the requirements of § 21.4262.
(d) Medical and dental assistants courses for the Department of Veterans Affairs. A course prescribed by the Secretary for full-time physicians’ assistants or for full-time expanded-function auxiliaries (formerly referred to as dentists’ assistants) may be approved as institutional training, if the course is conducted at Department of Veterans Affairs facilities or in facilities operated by hospitals, medical schools, or medical installations pursuant to a contract with the Department of Veterans Affairs.
(e) Professional training courses. (1) Any non-medically related professional internship program, such as a clinical pastoral course, will be recognized as an institutional course when it is accredited as an institutional course by a nationally recognized accrediting agency, and
(2) The approved facility for such a course must be the institution or other facility where the training is given.
(f) Other practical training courses. (1) Other off-campus job experience included in a school course, variously described by schools as internship, residency, practicum, externship, et cetera, may be included as a part of a cooperative program when the course meets the requirements of § 21.4233(a).
(2) However, such off-campus courses may be considered as resident institutional training only if all of the following conditions are met. The course is:
(i) Accredited by a nationally recognized accrediting agency or is offered by a school that is accredited by one of the regional accrediting associations;
(ii) A part of the approved curriculum of the school;
(iii) Directly supervised by the school;
(iv) Measured in the same unit as other courses;
(v) Required for graduation; and
(vi) Has a planned program of activities described in the school’s official publication which is approved by the State approving agency and which is institutional in nature as distinguished from training on-the-job. The description shall include at least:
(A) A unit subject description;
(B) A provision for an assigned instructor;
(C) A statement that the planned program of activities is controlled by the school, not by the officials of the job establishment;
(D) A requirement that class attendance on at least a weekly basis be regularly scheduled to provide for interaction between instructor and student;
(E) A statement that appropriate assignments are required for completion of the course;
(F) A grading system similar to the system used for other resident subjects offered by the school; and
(G) A schedule of time required for the training which demonstrates that the student shall spend at least as much time in preparation and training as is normally required by the school for its other resident courses.
(g) Nonaccredited courses. Any nonaccredited internship program not given in a school will be recognized as other on-the-job training when it meets the requirements of § 21.4262 and when the program is required for licensure by the State in which it is offered. (See § 21.4275 for measurement.)
§ 21.4266 Approval of courses at a branch campus or extension.
(a) Definitions. The following definitions apply to the terms used in this section.
(1) Administrative capability means the ability to maintain all records and accounts that § 21.4209 requires.
(2) Certifying official means a representative of an educational institution designated to provide VA with the reports and certifications that §§ 21.4203, 21.4204, 21.5810, 21.5812, 21.7152, and 21.7652 require.
(3) Main campus means the location where the primary teaching facilities of an educational institution are located. If an educational institution has only one teaching location, that location is its main campus. If it is unclear which of the educational institution’s teaching facilities is primary, the main campus is the location of the primary office of its Chief Executive Officer.
(4) Branch campus means a location of an educational institution that –
(i) Is geographically apart from and operationally independent of the main campus of the educational institution;
(ii) Has its own faculty, administration and supervisory organization; and
(iii) Offers courses in education programs leading to a degree, certificate, or other recognized education credential.
(5) Extension means a location of an educational institution that is geographically apart from and is operationally dependent on the main campus or a branch campus of the educational institution.
(b) State approving agency jurisdiction. (1) The State approving agency for the State where a residence course is being taught has jurisdiction over approval of that course for VA education benefit purposes.
(2) The fact that the location where the educational institution is offering the course may be temporary will not serve to change jurisdictional authority.
(3) The fact that the main campus of the educational institution may be located in another State from that in which the course is being taught will not serve to change jurisdictional authority.
(c) Approving a course offered by a branch campus or an extension of an educational institution. Before approving a course or a program of education offered at a branch campus or an extension of an educational institution, the State approving agency must ensure that –
(1) Except as provided in paragraph (d) of this section, each location where the course or program is offered has administrative capability; and
(2) Except as provided in paragraph (f) of this section, each location where the course or program is offered has a certifying official on site.
(d) Exceptions to the requirement that administrative capability exist at each location. (1) A State approving agency may approve a course or program offered by a branch campus that does not have its own administrative capability if –
(i) The main campus of the educational institution within the same State maintains a centralized recordkeeping system that includes all records and accounts that § 21.4209 requires for each student attending the branch campus without administrative capability. These records may be originals, certified copies, or in an electronically formatted record keeping system; and
(ii) The main campus can identify the records of students at the branch campus for which it maintains centralized records.
(2) The State approving agency may approve a course or program offered by an extension that does not have its own administrative capability if –
(i) The extension and the main campus or branch campus it is dependent on are located within the same State;
(ii) The main campus or branch campus the extension is dependent on has administrative capability for the extension; and
(iii) The State approving agency combines the approval of the course(s) offered by the extension with the approval of the courses offered by the main campus or branch campus the extension is dependent on.
(e) Combined approval. The State approving agency may combine the approval of courses offered by an extension of an educational institution with the approval of the main campus or the branch campus that the extension is dependent on, if the extension is within the same State as the campus it is dependent on. Combining the approval of courses offered by an extension, with the approval of courses offered by the main campus or branch campus the extension is dependent on, does not negate the minimum period of operation requirements in § 21.4251 for courses that do not lead to a standard college degree offered by an extension of a proprietary educational institution. The State approving agency will list the extension and courses approved on the notice of approval sent to the educational institution pursuant to § 21.4258 of this part.
(f) Exceptions to the requirement that each location where the course or program is offered must have a certifying official on site. Exceptions to the requirement in paragraph (c) of this section, that each location with an approved course or program of education must have a certifying official on site, will be permitted for –
(1) Extensions of an educational institution when the State approving agency combines the approval of the courses offered by the extension with a branch campus or main campus. (See paragraph (e) of this section.)
(2) Educational institutions with more than one campus within the same State if the main campus –
(i) Maintains a centralized recordkeeping system. (See paragraph (d)(1) of this section.);
(ii) Has administrative capability for the branch campus (or branch campuses) within the same State; and
(iii) Centralizes its certifying official function at the main campus.
(3) Educational institutions with multi-state campuses when an educational institution wants to centralize its certifying official function into one or more locations if:
(i) The educational institution submits all required reports and certifications that §§ 21.4203, 21.4204, 21.5810, 21.5812, 21.7152, and 21.7652 require via electronic submission through VA’s Internet-based education certification application;
(ii) The educational institution designates an employee, at each teaching location of the educational institution that does not have a certifying official present, to serve as a point-of-contact for veterans, servicemembers, reservists, or other eligible persons; the certifying official(s); the State approving agency of jurisdiction; and VA. The designated employee must have access (other than to transmit certifications) to VA’s Internet-based education certification application to provide certification information to veterans, servicemembers, reservists, or other eligible persons, State approving agency representatives, and VA representatives;
(iii) Each certifying official uses the VA facility code for the location that has administrative capability for the teaching location where the student is training when submitting required reports and certifications to VA; and
(iv) Each certifying official has full access to the administrative records and accounts that § 21.4209 requires for each student attending the teaching location(s) for which the certifying official has been designated responsibility. These records may be originals, certified copies, or in an electronically formatted record keeping system.
§ 21.4267 Approval of independent study.
(a) Overview. Except as provided in §§ 21.4252(g), 21.7120(d), and 21.7622(f), VA may not pay educational assistance for a nonaccredited course which is offered in whole or in part by independent study. Hence, it is necessary to differentiate independent study from similar courses.
(b) Definition of independent study. (1) VA considers a course to be offered entirely by independent study when –
(i) It consists of a prescribed program of study with provision for interaction between the student and the regularly employed faculty of the institution of higher learning. The interaction may be personally or through use of communications technology, including mail, telephone, videoconferencing, computer technology (to include electronic mail), and other electronic means;
(ii) It is offered without any regularly scheduled, conventional classroom or laboratory sessions; and
(iii) It is not a course listed in paragraph (c), (d), or (e) of this section.
(2) VA considers a course to be offered in part by independent study when –
(i) It is not classified as one of the three types of courses listed in paragraph (c) of this section;
(ii) It has some weeks when standard class sessions are scheduled; and
(iii) It consists of independent study as defined in paragraph (b)(1) of this section during those weeks when there are no regularly scheduled class sessions.
(c) Scope of independent study. VA does not consider any of the following courses to be courses offered by independent study.
(1) A cooperative course as defined in § 21.4233(a);
(2) A farm cooperative course; or
(3) A course approved as a correspondence course.
(d) Undergraduate resident training. VA considers the following undergraduate courses to be resident training.
(1) A course which meets the requirements for resident institutional training found in § 21.4265(f);
(2) A course which requires regularly scheduled, standard class sessions at least once every two weeks and which has a total number of class sessions equal to the number of credit hours awarded for the course, times the number of weeks in a standard quarter or semester, as applicable;
(3) A course of student teaching; and
(4) Flight training which is an integral part of a standard undergraduate college degree.
(e) Graduate resident training. VA considers a graduate course to be resident training if the course –
(1) Is offered through regularly scheduled, conventional classroom or laboratory sessions; or
(2) Consists of research (either on campus or in absentia) necessary for the preparation of the student’s –
(i) Master’s thesis,
(ii) Doctoral dissertation, or
(iii) Similar treatise which is prerequisite to the degree being pursued; or
(3) Consists of a combination of training as described in paragraphs (e)(1) and (e)(2) of this section.
(f) Course approval. A State approving agency may approve a course offered by independent study or a combination of independent study and resident training only if the course –
(1) Is accredited;
(2) Meets the requirements of § 21.4253; and
(3) Either –
(i) Leads to a standard college degree; or
(ii) For courses approved on or after December 27, 2001, leads to a certificate that reflects educational attainment offered by an institution of higher learning.
(g) Remedial and deficiency courses. Remedial and deficiency courses offered by independent study cannot be approved.
§ 21.4268 Approval of licensing and certification tests.
(a) Authority to approve licensing and certification tests. (1) Except for approval of the licensing and certification tests and the organizations or entities offering these tests that, as provided in § 21.4250(c)(2), are VA’s responsibility, the Secretary of Veterans Affairs delegates to each State approving agency the authority, within the respective State approving agency’s jurisdiction provided in § 21.4250(a), to approve licensing and certification tests and to approve the organizations or entities offering licensing and certification tests.
(2) The Secretary of Veterans Affairs delegates to the Under Secretary for Benefits, and to personnel the Under Secretary for Benefits may designate within the Education Service of the Veterans Benefits Administration, the authority to approve the licensing and certification tests and the organizations or entities offering these tests that, as provided in § 21.4250(c)(2)(vi), are VA’s responsibility.
(b) Approval of tests. (1) If an organization or entity wants a licensing or certification test that it offers to be approved for payment of educational assistance, it must apply for approval to the State approving agency having jurisdiction over the locality where the organization or entity has its headquarters. The application must be in the form the State approving agency requires.
(2) In order to be approved for payment of educational assistance to veterans and eligible persons, a licensing or certification test must meet the requirements of paragraph (b) of this section, and the organization or entity offering the test must meet the requirements of paragraph (c) of this section and, if appropriate, the requirements of paragraph (d) of this section.
(i) The State approving agency may approve a licensing or certification test only if –
(A) The test is required under Federal, State, or local law or regulation for an individual to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession; or
(B) The State approving agency decides that the test is generally accepted, in accordance with relevant government, business, or industry standards, employment policies, or hiring practices, as attesting to a level of knowledge or skill required to qualify to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession.
(ii) If a State or political subdivision of a State offers a licensing or certification test, the State approving agency will deem the test to have met the requirements of paragraph (b) of this section.
(3) In considering whether the test is generally accepted, a State approving agency may consider the following:
(i) The nature and number of the entities that recognize the certificate awarded to candidates who pass the test;
(ii) The degree to which employers in the relevant industry accept the certification test;
(iii) Whether major employers in an industry require that their employees obtain the certificate awarded to candidates who pass the test;
(iv) The percentage of people employed in the vocation or profession who have taken the test and obtained the certificate; or
(v) Any other reasonable criterion that the State approving agency believes will clarify whether the test is generally accepted.
(4) Generally, if a State approving agency approves a certification test, VA will consider that the test is approved for any veteran or eligible person even if he or she takes the test at a location outside the State where the organization or entity offering the test has its headquarters. However, a certification test approval is valid only in the State where the State approving agency has jurisdiction if –
(i) A State licensing agency recognizes the certification test as meeting a requirement for a license and has sought approval for that test; and
(ii) The State approving agency for the State where the licensing agency is located approves that test.
(c) Approval of organizations or entities offering licensing or certification tests. An organization or entity must meet the requirements of this paragraph and, if a nongovernmental organization, of paragraph (d) of this section, in order for the State approving agency to approve a licensing or certification test that the organization or entity offers for payment of educational assistance to veterans and eligible persons who take the test. The organization or entity must –
(1) Maintain appropriate records with respect to all candidates who take the test for a period of not less than three years from the date the organization or entity administers the test to the candidates;
(2) Promptly issue notice of the results of the test to the candidate for the license or certificate;
(3) Have a process to review complaints submitted against the organization or entity with respect to the test or the process for obtaining a license or certificate required for a vocation or profession;
(4) Give to the State approving agency the following information:
(i) A description of the licensing or certification test that the organization or entity offers, including the purpose of the test, the vocational, professional, governmental, and other entities that recognize the test, and the license or certificate issued upon passing the test;
(ii) The requirements to take the test, including the amount of the fee charged for the test and any prerequisite education, training, skills, or other certification; and
(iii) The period for which the license or certificate is awarded is valid, and the requirements for maintaining or renewing the license or certificate; and
(5) Agree to give the following information to VA at VA’s request:
(i) The amount of the fee a candidate pays to take a test;
(ii) The results of any test a candidate takes; and
(iii) Personal identifying information of any candidate who applies for reimbursement from VA for a test.
(d) Approval of nongovernmental organizations or entities offering certification tests. (1) In addition to complying with the requirements of paragraph (c) of this section, a nongovernmental organization or entity must meet the requirements of paragraph (d) of this section before a certification test it offers can be approved for payment of educational assistance to veterans and eligible persons who take the test. Except as provided in paragraphs (d)(3) and (d)(4) of this section, the organization or entity –
(i) Certifies to the State approving agency that the licensing or certification test offered by the organization or entity is generally accepted, in accordance with relevant government, business, or industry standards, employment policies, or hiring practices, as attesting to a level of knowledge or skill required to qualify to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession;
(ii) Is licensed, chartered, or incorporated in a State and has offered the test for a minimum of two years before the date on which the organization or entity first submits to the State approving agency an application for approval under this section;
(iii) Employs, or consults with, individuals with expertise or substantial experience with respect to all areas of knowledge or skill that are measured by the test and that are required for the license or certificate issued; and
(iv) Has no direct financial interest in –
(A) The outcome of the test; or
(B) An organization that provides the education or training of candidates for licenses or certificates required for a vocation or profession.
(2) At the request of the State approving agency, the organization or entity seeking approval for a licensing or certification test must give such information to the State approving agency as the State approving agency decides is necessary to perform an assessment of –
(i) The test the organization or entity conducts as compared to the level of knowledge or skills that a license or certificate attests; and
(ii) The applicability of the test over such periods of time as the State approving agency decides is appropriate.
(3) The provisions of paragraph (d)(1)(ii) of this section will not prevent the approval of a test if the organization or entity has offered a reasonably related test for at least two years.
(4) The provisions of paragraph (d)(1)(iv) of this section will not prevent the approval of a test if the organization or entity –
(i) Offers a sample test or preparatory materials to a candidate for the test but does not otherwise provide preparatory education or training to the candidate; or
(ii) Has a financial interest in an organization that provides preparatory education or training of a candidate for a test, but that test is advantageous in but not required for practicing a vocation or profession.
(e) Notice of approval and withdrawal of approval. The State approving agency must provide notice of an approval of a test as required in § 21.4250(b). If the State approving agency wishes to withdraw approval of a test, it must follow the provisions of § 21.4259.
(f) A decision to disapprove a test or an organization or entity offering a test may be reviewed. (1) If an organization or entity offering a test disagrees with a State approving agency’s decision to disapprove a test or to disapprove the organization or entity offering the test, it may seek a review of the decision from the Director, Education Service. If the Director, Education Service has acted as the State approving agency, the organization or entity may seek a review of the decision from the Under Secretary for Benefits.
(2) The organization or entity must make its request for a review in writing to the State approving agency. The State approving agency must receive the request within 90 days of the date of the notice to the organization or entity that the test or the organization or entity is disapproved.
(3) The review will be based on the evidence of record at the time the State approving agency made its initial decision. It will not be de novo in character.
(4) The Director, Education Service or the Under Secretary for Benefits may seek the advice of the Professional Certification and Licensure Advisory Committee, established under 38 U.S.C. 3689(e), as to whether the State approving agency’s decision should be reversed.
(5) The decision of the Director, Education Service or the Under Secretary for Benefits is the final administrative decision. It will not be subject to further administrative review.
Assessment and Pursuit of Courses
§ 21.4270 Measurement of courses.
(a) Measurement of trade, technical, and high school courses. Trade, technical, high school, and high school preparatory courses shall be measured as stated in this paragraph.
(1) Trade and technical courses. (i) Except as provided in paragraph (b) of this section, if shop practice is an integral part of a trade or technical course not leading to a standard college degree –
(A) A full-time enrollment is 22 clock hours per week (exclusive of supervised study) with not more than 2
(B) A three-quarter-time enrollment is 16 through 21 clock hours per week (exclusive of supervised study) with not more than 2 hours rest period allowance;
(C) A one-half-time enrollment is 11 through 15 clock hours per week (exclusive of supervised study) with not more than 1
(D) A less than one-half-time but more than one-quarter-time enrollment is 6 through 10 clock hours per week (exclusive of supervised study) with not more than
(E) A quarter-time enrollment is 1 through 5 clock hours per week (exclusive of supervised study).
(ii) Except as provided in paragraph (b) of this section, if theory and class instruction constitute more than 50 percent of the required hours in a trade or technical course not leading to a standard college degree, enrollments will be measured as follows. In measuring net instruction there will be included customary intervals not to exceed 10 minutes between classes. Shop practice and rest periods ar