M-21 VBA Administration Program

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INDEX TO TRANSMITTAL SHEETS

CFR # Transmittal Sheet # (and CFR subsection)

3.1 189; 235(i,o); 266(p,q,r), 280(m,n); 402(g); 463(g); 468(s,t); 565(d,m,q); 653(d,u,v,w,x); 709(y); 719(z); 757(aa); 761(y); 3-91-6(d); 3-95-9(m); 3-96-7(n,y)

3.2 189; 404(f,g); 468(h); 482(h); 571(f); 653(Intro,a); 3-91-11(i); 3-97-5(f)

3.3 189; 223(c); 235(b,c,d); 297(b,c,d); 404(c,d); 468(c,d); 482(c,d); 553(d); 565(a,d); 600(b,c,d); 624(c); 653; 3-91-6(b); 3-91-7(a); 3-91-11(a); 3-03-1(a)

3.4 189; 482(c); 517(d); 553(a,b,c,d); 647(b)

3.5 189; 323(a,d,e); 370(d); 442(e); 458(b); 463(d); 482(b,c,e); 553(a,b,d,e); 582(e); 616(e);
647(a,b,d,e); 3-93-3(e); 3-95-7(c)

3.6 189; 220(c); 223(b); 235(b); 330(e); 370(b); 463(b); 607(b,c,d,e); 720(c); 730(c);
3-89-2(c,d,e); 3-95-17(a,b,c); 3-96-2(b); 3-01-7(a,e); 3-02-9(a,e)

3.7 189; 235(b,u,v); 330(h); 402(h); 463(g); 524(w); 559(t); 645(x); 677(u,x); 683(x); 695(x); 708(x); 718(x); 724(x); 726(x); 741(x); 748(x); 751(x); 3-91-4(x); 3-91-17(x); 3-92-5(x); 3-92-9(x); 3-94-8(x); 3-98-2(x)

3.8 189; 391(b,c); 3-95-7(b,c,e)

3.9 189; 214(a,b)

3.10 [Reserved]

3.11 189; 647; 756

3.12 189; 235(b,c); 278(b,c,d); 592(e,f); 641(c,f,g,h,i,j); 666(d); 729(a,b,c,k); 3-97-3

3.12a 682; 702

3.13 189; 235; 381(b); 404(a); 565(b); 641(b,c); 682(b)

3.14 189; 235(a)

3.15 189; 235; 565

3.16 189; 600; 653

3.17 189; 223; 404; 482; 653; 3-91-11

3.18-19 [Reserved]

3.20 266; 565; 647; 710; 3-97-5; 3-99-3(b)

3.21 616; 653

3.22 647; 720(a); 750(b); 756(a); 3-00-1; 3-00-5(a)

3.23 653; 672(a,c); 684(a,c); 700(a,c); 716(a,c); 732; 740(a,c); 745; 750(d); 3-96-4(d)

3.24 653; 672(b,c); 684(b,c); 700(b,c); 716(b,c); 732; 740(b,c); 745; 3-96-4(c)

3.25 653; 672(a,c,d,e,f); 684(a,c,d,e); 700(a,c,d,e); 716(a,c,d,e); 732; 740(a,c,d,e); 745;
3-96-4(c)

3.26 653; 672; 684; 700; 716; 732; 740(a,b); 745

3.27 653; 3-97-6(c,d); 3-02-5(c,d), 3-03-6(d,e)

3.28 653; 745

3.29 653; 710; 716(b); 3-00-4(c); 3-02-5(c)

3.30 653; 710(b,c); 730(b,c); 739(a,d,c,d); 746(Intro); 3-92-2(a,b,c,d,e,f)

3.31 710; 730(c); 3-00-4; 3-02-5 (Intro, c)

3.50 190; 288(b,c); 453(b); 601; 3-97-2

3.51 190; 505; 3-97-2

3.52 190; 229(d); 405(a); 601(c,d)

3.53 190; 601; 3-94-7(a)

3.54 190; 229(a,b); 246(e); 405(a,b,c,d); 469(a); 566(b,c,d,e); 579(a); 601(Intro,a); 648(b,c,d,e); 756(c); 3-91-3(c); 3-91-11(a); 3-00-1(c)

3.55 190; 288; 453; 566(a,b,c,d,e); 648(a,b,c,d); 3-91-7; 3-92-2(b,c,d,e); 3-93-10; 3-95-14(a);
3-99-1; 3-00-5(a)

3.56 [Reserved]

3.57 190; 229(c); 246(b,c); 363(a); 419(a,c); 447(c); 505(c); 654(a,c,d); 665(a,b,c); 668(e); 730(a);

3-00-2(a)

3.58 190

3.59 190; 654(a)

3.60 654

3.100 191; 244(b); 311; 392(b); 400(d); 491(a,c); 495(c); 3-95-7(b,c); 3-96-4(a)

3.101 191; 754; 3-96-9

3.102 191; 734; 3-01-6

3.103 191; 276(a,b,c,d,e,f,g); 306; 494; 763; 3-92-6(b,f); 3-93-2(c); 3-93-17(f); 3-94-2(c); 3-94-3(b);

3-01-8(b)

3.104 191; 276(c); 301(a); 306(c); 311(b); 3-91-16(a); 3-01-3(a)

3.104 191; 236(d,e); 267(Intro,a,d,e,f); 539(d,e,f); 763(d,e,f,g,h); 3-91-16(a); 3-92-6(h); 3-97-6;

3-01-3(b); 3-02-5(g)

3.106 191; 481(a); 539(a); 3-95-7(c,d,e); 3-97-2

3.107 191; 319; 3-96-8

3.108 191

3.109 191; 211(c); 276(b,c); 306(b); 343(a); 763(b)

3.110 191; 276; 763

3.111 [Reserved]

3.112 191

3.113 191; 236; 3-01-10

3.114 267; 763(a); 3-97-4; 3-00-4(a); 3-02-5(a)

3.115 3-93-10

3.150 192; 342(d); 3-02-7

3.151 192; 733

3.152 192; 268(c); 342(c); 733

3.153 192

3.154 192; 217; 268

3.155 192; 744

3.156 192; 268(a,b,c,d,e,f,g); 3-90-5(a,b,c); 3-01-6(a)

3.157 192; 237(b); 268; 385(b); 587(b); 614(b); 744; 3-95-10(b)

3.158 192; 268; 303(c); 747(a); 3-97-6; 3-02-5(a, c)

3.159 3-90-6; 3-01-6

3.160 268; 385(d)

3.200 193; 307(a); 576; 743

3.201 193; 743; 3-93-4(a)

3.202 193; 576(a,b); 743; 3-94-16(c)

3.203 193; 212(a,b,c); 580(b); 678; 694(a); 743; 3-93-15(c); 3-01-5(a)

3.204 193; 678(Title); 743; 753; 3-94-16(b,c); 3-96-6; 3-01-8(a)

3.205 193; 247; 478(a); 580; 707(a,c); 743; 3-93-15(a); 3-94-16(a); 3-97-2

3.206 193; 247; 452(c); 580(Intro); 743

3.207 193; 234(Intro,c); 289; 743; 3-94-16(b)

3.208 193; 580; 743

3.209 193; 234(Intro,d,f); 478(Intro); 580(Intro); 707(Intro,e,g); 743; 3-94-16(a,b)

3.210 193; 221(c); 234(c); 286(b,d); 448(c); 506(c); 707(c); 743; 3-94-16(b,c)

3.211 193; 234(g); 743; 3-94-16(a,d)

3.212 193; 234(c); 743

3.213 193; 234(a,c); 269(a,b); 743; 3-96-6

3.214 369; 743; 3-97-2

3.215 454; 743; 3-91-7; 3-92-2; 3-93-10

3.216 3-92-1; 3-00-4; 3-02-5

3.217 3-01-8

3.250 194; 228(d); 281(Title,a); 567(a,c); 573(a); 731(a); 3-96-4(d)

3.251 194; 228(e); 281(a); 393(a); 395(a); 421(a); 470(a); 483(a); 567(a); 595(a); 3-95-7(a)

3.252 194; 228(d); 281; 406(Title); 421(a,b); 470(Title,a,b); 483(a,b,e); 567(a,b,d,e); 595(a,b); 625(f); 655(a); 3-96-4(a); 3-97-2

3.253-5 [Reserved]

3.256 194; 230; 281; 331; 470; 3-95-12; 3-98-6; 3-00-3; 3-01-8(a)

3.257 194; 281; 567; 3-97-2

3.258-9 [Reserved]

3.260 281(a,b,c,d,e,f); 309(c); 483(g); 567(e)

3.261 281(a,b,c); 331(a,b); 353(a); 359(a); 376(a); 395(a,b); 428(a); 470(a,b); 483(b); 490(a); 502(a); 511(a); 521(a); 525(a); 547(a); 562(a); 589(a); 599(a); 633(a); 3-92-8; 3-93-11(a); 3-94-12(a); 3-95-1(a); 3-95-7(a); 3-97-6; 3-02-5(a); 3-03-5(a)

3.262 281(a,b,c,d,e,f,g,h,i,j,k,l,m); 331(b,e,j,k,l,m,n); 340(k); 356(i); 388(i,j); 395(e,i,j,k,m,n,o,p); 406(m,n,p); 470(k); 483(b,i,k,l,m,n); 502(h); 521(f); 525(q); 547(o,p,q); 599(o,p,q); 655(b,e,g); 673(b); 685(b); 701(b); 717(b); 732(b); 740(b); 745; 3-92-8; 3-93-11(u); 3-94-9(m,o); 3-94-12(v); 3-95-1(w); 3-95-7(x); 3-97-2; 3-97-6; 3-02-5(y); 3-03-5(z)

3.263 281(a,b,c,d); 547(a); 655(d); 3-92-8; 3-93-11(f); 3-97-6; 3-02-5(g); 3-03-5(h)

3.270 655

3.271 655; 750(a,e,f) 3-92-8(a,f)

3.272 655; 679(k); 750(Intro,g,h,l,m); 3-91-14(k); 3-92-8(d,n,o,p); 3-93-5(l); 3-94-9(h);
3-94-12(r); 3-94-14(q); 3-95-1(s); 3-95-7(t); 3-97-1(c); 3-97-6; 3-02-5(u); 3-02-6(h);

3-03-5(v)

3.273 655; 711(a,b); 3-92-8

3.274 655

3.275 655; 3-92-8(f,g); 3-95-1(h); 3-97-6; 3-02-5(i); 3-03-5(j)

3.276 655

3.277 655; 3-92-8; 3-95-12; 3-98-6; 3-00-3; 3-01-8(b)

3.300 3-01-2

3.301 209; 504(c); 3-95-9(a,c,d)

3.302 209; 279

3.303 209

3.304 209; 374(Title,a,b); 554(a,b); 3-93-9(f); 3-99-5(f); 3-02-4(f)

3.305 209; 290(b); 374(Title,a); 554(Title,a)

3.306 209; 3-92-7(b,c)

3.307 209; 262(a); 290(a); 374(Title,a); 455(a,b,d); 554(Title,a); 643(c); 698(a,b); 3-93-8(a);
3-94-1(a); 3-94-6(a); 3-96-5(a); 3-97-5(a); 3-02-12(a,c,d); 3-03-1(a)

3.308 209; 290(b); 374; 554

3.309 209; 374(a); 455(c); 554(a,c); 617(a,b); 698(c); 714; 730(c); 750(c); 755; 3-92-2(d);
3-93-6(d); 3-93-8(e); 3-94-1(e); 3-94-5(d); 3-94-6(e); 3-94-10(c); 3-95-11(d); 3-96-5(e);
3-00-5(d); 3-01-4(e); 3-02-1(d); 3-02-12(a); 3-03-2(c), 3-03-3(e)

3.310 209; 663; 3-01-2(a)

3.311 723; 734; 3-94-1; 3-94-15(b); 3-95-3(b); 3-95-15(b); 3-98-5(b); 3-02-2(b)

3.311a 734; 3-91-9(c,d); 3-91-10(c,d); 3-94-1

3.311b 734; 3-89-1(a,b); 3-93-1(b,h); 3-94-1

3.312 209

3.313 3-90-2

3.314 209; 298(a,b); 332(a); 352; 374; 407(b); 471; 588; 626(b); 3-96-3(b)

3.315 374; 407(d,e); 471(d); 507; 588(b,c); 612(b); 631(c); 738(b); 3-96-8(c)

3.316 3-92-4; 3-94-13

3.317 3-95-2; 3-98-3; 3-01-9(a); 3-03-1(a,b,d)

3.318-20 [Reserved]

3.321 209; 215(b); 308(b,c); 312(b); 441(b); 492(b); 532(b); 550(b); 590(b); 3-96-4(b)

3.322 209

3.323 209; 518; 3-96-3(b)

3.324 209; 518; 588

3.325 [Reserved]

3.326 407(d,h); 471(h); 475; 588(a,d); 3-90-3(a); 3-94-11(b,d); 3-95-10(d); 3-95-13; 3-01-6(a)

3.327 209; 225(b,c); 357(b,c); 475(b,c); 3-90-3(a,b,c,d); 3-95-10(b)

3.328 762

3.329 209; 3-90-3

3.330 209; 310

3.331-9 [Reserved]

3.340 209; 689(a)

3.341 209; 310; 689; 737(c); 3-93-10(c); 3-03-1(b,c,)

3.342 209; 225(b); 310(b); 407(a); 537(b); 689(a); 737(b,c); 750(b); 3-91-7(a); 3-91-13(c);
3-93-10(c)

3.343 209; 429; 537(c); 737(c); 750(c); 3-92-2(d); 3-93-10(c)

3.344 209

3.350 209; 238(i); 245(f); 282(a,b,c,d,e,f,h,i); 293(a); 295(h); 364(a,b,c,d,e,f,h,i); 407(a); 415(f); 429; 455(a,b,c,d,e,f,h,i); 496(a,b,c,d,e,f,h,i); 516(i); 518(Intro,a); 554(Intro,a,b,c,d,e,f,h,i); 583(a,b,c,d,e,f,h,i); 617(a,b,c,d,e,f,h,i); 637(a,f,h); 649(a,f,h); 669(a,f,h); 689(a); 703(a,c,d,e,f); 721(d,f); 730(e,f); 3-95-5(i); 3-02-3(a), 3-03-6(a)

3.351 209; 332(d); 407(a,b,c,d,e); 443(Title,a); 471(a,d); 484(a,c); 516(d); 564(a,c,d,e); 603(a,d); 617(Title,a,c); 649(a,c,f); 656; 3-94-11(a)

3.352 209; 213(Title,a); 560; 609; 649; 3-95-10(b); 3-96-9

3.353 209; 477(a,b,c); 560(a,b,d); 609(b); 629(b,d,e); 3-93-14(d); 3-95-16(b); 3-01-7(b); 3-02-8(b);

3-03-1(b)

3.354 209

3.355 209

3.356 209; 508

3.357 209; 346(b); 3-93-16(a)

3.358 209; 467(c); 554(c); 644(c); 3-95-6(c); 3-98-4(a)

3.359 635

3.360 642

3.361 3-98-4

3.362 3-98-4

3.363 3-98-4

3.370 209; 643(b)

3.371 209; 245(b); 374(Title,c); 554(Title); 643(a,c)

3.372 209; 429

3.373 [Reserved]

3.374 209; 245(d); 429(a,b); 643(d)

3.375 209; 245(b,c); 429; 643(a)

3.376-7 [Reserved]

3.378 209; 643

3.379 209

3.380 209

3.381 209; 3-99-2

3.382 209; 649; 3-99-2

3.383 264; 364(Intro,b,c); 649; 750

3.385 3-90-1; 3-94-17

3.400 195; 218(e,u); 248(e,h,j,o); 260(e); 270(Intro,c,d,f,g,i,o,p,q,r,v); 304(u); 305(e); 315(b); 333(j,q); 422(j); 437(h); 456(v,w,x); 459(c); 462(o); 464(b,c); 497(j); 540(w); 542; 551(b,c); 568(u); 584(j,o); 596(c); 604(e,f); 636(x,y); 646(z); 674(v); 733(b,c); 3-91-7(d,u,v,w); 3-92-2(u,v,w); 3-95-7(s); 3-95-14; 3-96-8(d); 3-97-2; 3-03-1(b,e)

3.401 195; 248(b); 270(b,f,h); 462(b); 540(b,c.d); 610(d,g,h); 618(a,c); 627(i); 674(a,f); 3-97-2

3.402 195; 270(c); 302(b); 408(a,c); 416(c); 542(Title,Intro,a,b); 674

3.403 195; 270(a); 420(f); 449(f); 462(c); 509(f); 542(Intro,f); 610(b); 674(Intro); 3-97-6; 3-02-5(b,c)

3.404 485; 674

3.450 196; 219(b,d,e); 249(a); 409(g); 486(e); 657(a,c,e,g,h)

3.451 196; 219; 657

3.452 196; 219(a,c,d,e); 249(c,d); 258(c); 334(c); 569(c,d); 657(a,c); 3-03-1(Title, c)

3.453 196; 219

3.454 196; 219; 249(a,b,c); 258(b); 334(b); 409(b); 472(Intro,b); 474(Intro); 569(b); 574(a); 657(Intro,a,b,c,d); 3-91-18(b,c,d); 3-03-1(c,d)

3.458 196; 219(a,b,c,g,h,i); 249(f); 261(c); 569(b,c,e,f,g); 657(b,c,e,f,g); 3-96-4(f)

3.459 196; 444(b); 569; 657

3.460 196; 219(Intro,c); 334(c); 409; 423(c); 472(c); 474(Intro,c); 569(Intro); 594; 606; 638(Intro); 657(Intro,b,c); 3-96-4(b)

3.461 196; 334(b); 444(b); 460(a,b); 515(b); 594; 606(a,b); 638; 3-96-4(b)

3.500 197; 231(h); 256(t); 271(Intro,b,d,e,g,h,i,k,l,n,r,v,w); 360(x); 396 (x); 424(f,h); 487(g,n); 519(r); 543); 555(r); 572(b,e,g,n,p); 687(b,e,n,s); 712(g,n); 747(v); 3-91-2(n); 3-91-15(q); 3-92-1(w); 3-93-7(x); 3-95-2(y)

3.501 197; 271(a,b,c,d,e,g,i,k,l,m); 328(b); 338(i); 487(d); 529(i); 619(b,d,i); 658(i); 712(d); 750(i); 3-91-7(i); 3-91-12(n); 3-91-18(i); 3-01-7(i); 3-03-1(i)

3.502 197; 271(a,b,d); 338(a); 410(e); 417(e); 445(a,b); 487(a); 619(Title,Intro,c); 712(a); 3-93-10(f)

3.503 197; 271(a,b,c,d,h); 365(a); 432(h); 450(j); 510(j); 619(Intro,b,i); 3-97-6; 3-02-5(b)

3.504 487

3.551 198; 250(a,b,c,d,e,f); 259(c,f); 327(a); 335(c); 339(b); 378(e); 411(c); 425(c); 498(a,b,c,g); 530(b); 552(a,b,c,d,e,f); 578(c,d,e); 602(c,g); 659(a,b,c,d,f); 675(a,b,c); 690(c); 704(g); 3-91-7(h); 3-91-18(a,b,c,d,e,f,g,h); 3-93-10(i); 3-94-18(i); 3-99-4(i); 3-01-7(i); 3-03-1(a,b,i)

3.552 198; 250(a,b,d,i); 283(a,b,d,e,g,h,i,j,k); 296(b); 327(b); 335(e); 366(a,d,g,h,i); 378(b); 411(b,e); 430(a,g,h); 498(a,b,g,h); 530(d,f,g); 556(g,h); 585(g,h); 620(g,h); 628(j); 639(g); 650(Title,a,b,g); 659(e,j); 670(g); 686(a,b,k); 690(g); 3-03-1(a)

3.553-5 [Reserved]

3.556 198; 250; 259(a,e); 283(a); 327(a); 339(a); 530(a); 556(a); 578(b,c,d,e,f); 650(a); 659(a); 736(e)

3.557 198; 250(b,d); 498(a); 530(d); 578(a,b,d); 676(a,b); 736; 750(c,d); 3-01-7(b); 3-03-1(removed)

3.558 198; 250(b,c); 302(c); 480(c); 530(a); 578(b,c); 602(Title,c); 736; 3-93-12(c); 3-01-7(a);

3-03-1(a,b,c)

3.559 198; 578(a,b); 3-96-4(c); 3-01-7; 3-03-1(removed)

3.650 199; 321; 705(Intro,a,c)

3.651 199; 272(b); 341(a)

3.652 199; 272(b); 747(a,b)

3.653 199; 272(b,c); 387(b,c); 705(b,c)

3.654 199; 272

3.655 199; 272; 476(b); 3-90-3

3.656 199; 239(Title,a,b); 272(a,b); 347(a); 384(d); 544(d); 563(c); 597(d); 660(a,d)

3.657 199; 321(Intro,a); 544; 660

3.658 199; 544; 597

3.659 199; 239; 321(Intro,b); 433(b); 597(b)

3.660 199; 232; 272; 335; 345; 397(a); 426(a); 488(a); 561(a,c); 621(a); 660; 713(a); 3-92-8(a,b)

3.661 199; 232; 272(b); 335; 345(a); 523(b); 660(a); 696(b); 3-92-8(a,b)

3.662-4 [Reserved]

3.665 691; 3-03-1(heading, a,c,m,n)

3.666 199; 384(Intro); 561(Intro,a); 570; 660; 691(Title,d); 3-97-2; 3-03-1(heading, intro, e)

3.667 199; 272(b,c,e); 367(e); 403(c,f); 440(b); 570(a,b); 705(a); 3-00-2

3.668 [Reserved]

3.669 253; 292(c,d); 548(a,c); 688(a,b)

3.700 200; 263(a); 324(a); 336(Intro); 351(a); 451(a); 457(b); 591; 661; 744; 3-91-1(a); 3-02-10(a)

3.701 200; 227(a); 473(a); 591(a); 661(a)

3.702 200; 240(e,f); 383(f); 461(a,b,d); 473(a); 489(a); 545(c,d,e,f); 598(a,b); 661(b); 3-95-7(d);

3-96-4(a,b); 3-97-2

3.703 200; 240; 322(a,c,d); 434(c); 545(a,c)

3.704 200; 240(a); 322(a,b) 434(a); 545

3.705 [Reserved]

3.706 200; 545

3.707 200; 240; 316(a); 375(a); 434; 608(b)

3.708 200; 265; 446(b); 541; 608; 661

3.709 200; 3-96-8

3.710 200; 336

3.711 227; 412; 499(b); 541; 608(b); 661; 680

3.712 661; 680; 3-96-8

3.713 661

3.714 680

3.715 3-93-7

3.750 201; 241(b); 326(b); 371(a,c); 465(a,c); 615(b,c); 692(a,b,c,d)

3.751 201

3.752 [Reserved]

3.753 201

3.754 277

3.800 202; 216(a); 273(a); 337(a); 520(b); 557; 750(a); 3-98-4

3.801 202; 557(c); 3-03-1(e)

3.802 202; 233(b); 294(a); 402(a); 651(b); 745, 3-03-6(c)

3.803 202; 287(b,c); 651(a)

3.804 202

3.805 202; 372(a); 503(e); 581(d,e,f); 613(Title,Intro,a); 651(Title,Intro); 3-97-2

3.806 202

3.807 202; 233; 317; 358(b,c); 362(b,c); 373(b,c); 390(b); 435(Title,Intro,b,d); 513(d); 581(Intro,a,b); 752; 3-94-19(c)

3.808 202; 413(a,c,e); 418(e); 466; 514(Intro); 577(Intro); 622(a); 634(a,b); 651(Intro); 706(Intro); 752(Intro,b,c,d); 3-01-11(d)

3.809 202; 233(b,d); 325(b,d); 438(b,d); 640(b,d); 693(Title,Intro)

3.809a 693; 750(Intro)

3.810 500; 531(c); 533(a); 577(a); 586(a); 622(a); 728(a); 3-91-3(a); 3-97-5

3.811 533; 3-96-1; 3-98-1; 3-98-7

3.812 727; 755; 3-93-13(f); 3-95-8(f)

3.813 734

3.814 3-97-6; 3-00-4(c,e,f); 3-01-1; 3-02-5(Title, a,b,c,d,e)

3.815 3-02-5

3.816 3-03-4

3.850 203; 210(c); 242(c); 526(c); 535(a); 558(a,b); 575(a); 593(a); 671(a); 3-02-8(d)

3.851 203; 535; 558; 671

3.852 203; 242; 526(a,b); 535(a,b); 575(a,b); 671(b); 3-96-4; 3-03-1(a,d,e)

3.853 3-91-12; 3-03-1(d)

3.854 203; 558

3.855 203; 526; 535(b); 630

3.856 203; 242; 558

3.857 203; 535; 3-97-2

3.900 204; 252(b,d); 749(d)

3.901 204; 252; 501(e); 749(c); 3-96-4(c,d)

3.902 204; 252; 749(c); 3-96-4(d)

3.903 204; 252; 512(a); 527(b)

3.904 252; 527(b,c); 536(c); 749(b)

3.905 284; 313(a,d); 493(a); 501(Title,a,e); 536(a,b); 749(b)

3.950 205

3.951 205; 274; 329; 439; 3-92-2

3.952 205; 226

3.953 205; 224(Title,c); 226(c)

3.954 205

3.955 [Reserved]

3.956 [Reserved]

3.957 226; 274; 329; 427

3.958 274; 605

3.959 431

3.960 662; 3-91-8(b,c)

3.961 662; 3-96-8

3.962 662; 3-96-8

3.1000 206; 275(a,b,c,d); 368(d); 377(g); 436(d,f); 538(f,h); 3-91-5(g); 3-96-8(g); 3-97-2; 3-97-5;

3-02-11(Title, c,d)

3.1001 206; 243(Title,Intro,a,b); 257; 275(a); 538(a,c)

3.1002 206; 243; 538

3.1003 206; 275(Intro); 3-94-4; 3-99-6(b)

3.1004-6 [Reserved]

3.1007 206; 243; 549; 3-01-7; 3-03-1

3.1008 199; 206

3.1009 243; 299(Intro); 549(Intro,a)

3.1600 207; 379(Intro,a,b); 394(a,b); 399(Intro,a,b,c); 528(a,b,f); 611(a,b,c); 623(a,g); 652(a,c,g); 697(Intro,a,b,c,f); 722(b,c); 745; 3-91-7(f); 3-95-7(a,b,f); 3-97-5(c)

3.1601 207; 291(a); 349(b); 414(a,c); 528(a,b,c); 611(a); 652(a); 664; 722(b); 745; 3-90-4(a)

3.1602 207; 528(a,b,d); 611(a)

3.1603 207; 528; 722

3.1604 207; 318(Title,Intro,a); 528(c); 611(a); 652(a,b); 664(c,d); 745; 3-01-7(d)

3.1605 207; 222(b); 380(b); 399(Intro,a); 479(d); 528(Intro,a,b); 652(Intro); 722(Intro)

3.1606 207; 479(a); 522(a); 623; 632(b)

3.1607 207

3.1608 207

3.1609 207; 254; 528; 623(a)

3.1610 207; 3-92-3

3.1611 207

3.1612 664; 667(e); 681(e); 699(e); 715(e); 725(e,g); 735(e); 742(e); 745; 3-90-4(g); 3-91-7(h);
3-91-13(b,c,e); 3-96-4(e)

3.2100 3-01-10

3.2130 3-01-10

3.2600 3-01-3; 3-02-8(a)

REGULATORY AMENDMENT

3-89-1

Regulations Affected: 38 CFR 3.311b(a) and (b)

EFFECTIVE DATE OF REGULATION: November 17, 1989.

Date Secretary Approved Regulation: September 13, 1989

Federal Register Citation: 54 FR 42802-3 (October 18, 1989)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

The Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98-542, required VA to promulgate regulations for the adjudication of compensation claims in which disabilities or deaths of veterans are alleged to be the result of in-service exposure to ionizing radiation. To assist VA in its effort, the law mandated the establishment of the Veterans Advisory Committee on Environmental Hazards (VACEH).

Section 3.311b. The Radiation-Exposed Veterans Compensation Act of 1989, Pub. L. 100-321, amended 38 U.S.C. 1112 to establish presumptive service connection for certain radiation-exposed veterans. 38 CFR 3.311b(a)(1) has been amended by adding a reference to § 3.309, which implemented this statutory provision.

VACEH recommended that posterior subcapsular cataracts and non-malignant thyroid nodular disease be considered "radiogenic" and that the gender restriction regarding breast cancer be deleted. VACEH also recommended the manifestation periods for cataracts and thyroid disease and that the time restriction for the manifestation of leukemia be deleted. The Secretary has accepted these recommendations. 38 CFR 3.311b(b) has been appropriately amended.

REGULATORY AMENDMENT

3-89-2

Regulations Affected: 38 CFR 3.6(c), (d) and (e)

EFFECTIVE DATE OF REGULATION: October 1, 1988

Date Secretary Approved Regulation: November 21, 1989

Federal Register Citation: 54 FR 51199-200 (December 13, 1989) as corrected by 55 FR 23930-1 (June 12, 1990)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 3.6. Section 633(c) of Pub. L. 100-456, National Defense Authorization Act, amended 38 U.S.C. 101 to require that training duty performed by members of the Senior Reserve Officers' Training Corps for periods less than four weeks, or for any period which is not a prerequisite to commissioning, is to be defined as "inactive duty training" rather than "active duty for training". Training by applicants for membership in the Senior Reserve Officers' Training Corps as defined in 5 U.S.C. 8140(g) is also included under the definition of "inactive duty training". In 38 CFR 3.6, paragraph (d)(3) is redesignated as paragraph (d)(4), paragraph (d)(2) is revised and a new paragraph (d)(3) is added. 38 CFR 3.6(c)(4) and (5), and (e) are revised.

REGULATORY AMENDMENT

3-90-1

Regulation Affected: 38 CFR 3.385

EFFECTIVE DATE OF REGULATION: May 3, 1990.

Date Secretary Approved Regulation: February 22, 1990

Federal Register Citation: 55 FR 12348-9 (April 3, 1990)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.385. The Chief Medical Director suggested that a definition of hearing within normal limits be established consistent with the revision of 38 CFR, Part 4, on the evaluation of hearing loss which was effective December 18, 1987. New section 3.385 has been added to 38 CFR, Part 3, to define hearing within normal limits for rating purposes and to preclude service connection when hearing is within normal limits.

REGULATORY AMENDMENT

3-90-2

Regulation Affected: 38 CFR 3.313

EFFECTIVE DATE OF REGULATION: August 5, 1964

Date Secretary Approved Regulation: October 2, 1990

Federal Register Citation: 55 FR 43123-5 (October 26, 1990)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.313. On March 29, 1990, the Centers for Disease Control released a study entitled "The Association of Selected Cancers with Service in the U.S. Military in Vietnam." That study found that Vietnam veterans have a roughly 50 percent increased risk of developing non-Hodgkin's lymphoma (NHL) after service in Vietnam. The Secretary has determined that there is a relationship between Vietnam service and the subsequent development of NHL. 38 CFR, Part 3, has been amended to add section 3.313 to provide the criteria to be used in considering claims for service connection for NHL by Vietnam veterans.

The General Counsel held that in making a liberalizing amendment to VA regulations, the Secretary may establish an effective date earlier than the date of publication in the Federal Register. Consequently, this amendment is effective on August 5, 1964, the beginning date of the Vietnam era.

REGULATORY AMENDMENT

3-90-3

Regulations Affected: 38 CFR 3.326(a); 3.327(a), (b), (c) and (d); 3.329; and 3.655

EFFECTIVE DATE OF REGULATION: December 31, 1990

Date Secretary Approved Regulation: November 8, 1990

Federal Register Citation: 55 FR 49520-2 (November 29, 1990)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

The regulations concerning examinations, reexaminations and failure to report for examination have been reorganized in order to clarify the provision that individuals must report for VA examinations. A requirement to issue advance notice before taking adverse action because of failure to report has been added.

Section 3.326. 38 CFR 3.326 has been amended by adding an introduction to specify that the term examination includes periods of hospital observation when requested by VA. The provision requiring individuals to report for VA examinations, formerly contained in § 3.329, has been incorporated in § 3.326(a) and gender-neutral language has been substituted where appropriate.

Section 3.327. 38 CFR 3.327(a) has been amended to specify that the term reexamination includes period of hospital observation when requested by VA. Section 3.327(d) has been removed and the provision regarding VA's right to request reexaminations has been incorporated in § 3.327(a) for greater emphasis. The provision requiring individuals to report for VA examinations, formerly contained in § 3.329, has been incorporated in § 3.327(a). The language in § 3.327(b) and (c) has been modified for the sake of clarity.

Section 3.329. 38 CFR 3.329 has been removed.

Section 3.665. 38 CFR 3.655 has been rewritten and now requires that an advance notice be issued before any adverse action is taken because of an individual's failure to report for a VA examination.

REGULATORY AMENDMENT

3-90-4

Regulations Affected: 38 CFR 3.1601(a) and 3.1612(g)

EFFECTIVE DATE OF REGULATION: January 7, 1991

Date Secretary Approved Regulation: November 15, 1990

Federal Register Citation: 55 FR 50322-3 (December 6, 1990)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 3.1601. The General Counsel held in an opinion dated May 1, 1989 (O.G.C. Prec. 9-89), that the 2-year time limit for filing claims which is established in 38 CFR 3.1601(a) should not apply to claims for service-connected burial benefits under 38 U.S.C. 2307. 38 CFR 3.1601(a) has been amended to eliminate the time limit for filing claims for the service-connected burial allowance and claims for transportation expenses to the place of burial.

Section 3.1612. A subsequent opinion dated July 31, 1991 (O.G.C. Prec. 17-90), held that the 2-year time limit as applied to claims for reimbursement for the cost of transporting a veteran's body to a national cemetery under 38 U.S.C. 2308 and the 2-year time limit established in 38 CFR 3.1612(g) as applied to claims for monetary allowance in lieu of a Government-furnished headstone or marker under 38 U.S.C. 2306 are invalid. 38 CFR 3.1612(g) has been amended to eliminate the time limit for filing claims for the monetary allowance in lieu of a Government-furnished headstone or marker.

REGULATORY AMENDMENT

3-90-5

Regulation Affected: 38 CFR 3.156

EFFECTIVE DATE OF REGULATION: January 22, 1991

Date Secretary Approved Regulation: November 27, 1990

Federal Register Citation: 55 FR 52274-5 (December 21, 1990)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.156. The Veterans' Judicial Review Act, Pub. L. 100-687, established the United States Court of Veterans Appeals and added new section 5108, dealing with claims reopened on the basis of "new and material evidence," to title 38, United States Code. That term has been used in 38 CFR for many years without a formal definition. Because of this new statutory use of the term, and because VA claims will now be subject to judicial review, a formal definition of the term "new and material evidence" has been developed. In 38 CFR 3.156, paragraphs (a) and (b) have been redesignated as paragraphs (b) and (c) respectively, and a new paragraph (a), containing the definition of new and material evidence, has been added.

REGULATORY AMENDMENT

3-90-6

Regulation Affected: 38 CFR 3.159

EFFECTIVE DATE OF REGULATION: January 22, 1991

Date Secretary Approved Regulation: November 27, 1990

Federal Register Citation: 55 FR 52273-4 (December 21, 1990)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.159. It has been a long-standing VA policy to assist claimants in developing the facts pertinent to their claims. The Veterans' Judicial Review Act, Pub. L. 100-687, made this VA policy a statutory requirement and codified it at 38 U.S.C. 5107. 38 CFR 3.159 has been added to clarify VA's obligation to assist claimants in developing the facts pertinent to their claims.

REGULATORY AMENDMENT

3-91-1

Regulation Affected: 38 CFR 3.700(a)

EFFECTIVE DATE OF REGULATION: April 30, 1990

Date Secretary Approved Regulation: December 11, 1990

Federal Register Citation: 56 FR 1110-1 (January 11, 1991)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.700. In a recent opinion (O.G.C. Prec. 10-90) dated April 30, 1990, the General Counsel, noting that military disability pay has been substantially altered over the last few years, held that sick pay and incapacitation pay paid to a member of a reserve component can no longer be equated to active duty pay. 38 CFR 3.700(a)(1)(i) has been amended to delete the references to sick pay and incapacitation pay.

REGULATORY AMENDMENT

3-91-2

Regulation Affected: 38 CFR 3.500(n)

EFFECTIVE DATE OF REGULATION: September 10, 1990

Date Secretary Approved Regulation: January 16, 1991

Federal Register Citation: 56 FR 4729 (February 6, 1991)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.500. In a precedent opinion dated September 10, 1990 (O.G.C. Prec. 90-90), the General Counsel held that an individual who is living with a person of the opposite sex and holding himself or herself out to the public to be the spouse of such person remains a "child" within the meaning of 38 U.S.C. 101(4), as long as the individual does not contract a valid marriage. Consequently, subparagraph (3) of 38 CFR 3.500(n) has been removed.

REGULATORY AMENDMENT

3-91-3

Regulations Affected: 38 CFR 3.54(c) and 3.810(a)

EFFECTIVE DATE OF REGULATION: December 18, 1989

Date Secretary Approved Regulation: January 8, 1991

Federal Register Citation: 56 FR 5756 (February 13, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 3.54. Pub. L. 101-237 amended 38 U.S.C. 1318(c)(1) to reduce the time a surviving spouse must have been married to a veteran in order to be eligible for certain survivor benefits. Eligibility previously required two years of marriage. This has been reduced to one year. 38 CFR 3.54(c) has been amended to implement this new provision of law.

Section 3.810. The Veterans' Benefits Amendments of 1989, Pub. L. 101-237, amended 38 U.S.C. 1162 to expand the category of veterans entitled to receive a clothing allowance. Veterans who because of a skin condition resulting from a service-connected disability use medication which a physician has prescribed, and which the Secretary determines causes irreparable damage to the veterans' outergarments, are now eligible for this benefit. 38 U.S.C. 1162 has also been amended to eliminate the requirement that eligibility for the clothing allowance be based upon a compensable disability. 38 CFR 3.810(a) has been amended to implement these changes.

REGULATORY AMENDMENT

3-91-4

Regulation Affected: 38 CFR 3.7(x)

EFFECTIVE DATE OF REGULATION: The effective dates are August 30, 1990 (§ 3.7(x)(17) and (18)), and October 5, 1990 (§ 3.7(x)(19)).

Date Secretary Approved Regulation: January 16, 1991

Federal Register Citation: 56 FR 5755-6 (February 13, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 3.7. The Secretary of the Air Force held under Pub. L. 95-202 that the service of members of the following groups is active duty for VA benefit purposes: U.S. Civilians of the American Field Service (AFS) Who Served Overseas Operationally in World War I During the Period August 31, 1917, to January 1, 1918; U.S. Civilians of the American Field Service (AFS) Who Served Overseas Under U.S. Armies and U.S. Army Groups in World War II During the Period December 7, 1941, through May 8, 1945; and U.S. Civilian Employees of American Airlines Who Served Overseas as a Result of American Airlines' Contract with the Air Transport Command During the Period December 14, 1941, through August 14, 1945. 38 CFR 3.7(x) has been amended to include these groups.

The amendments are effective August 30, 1990, for the U.S. Civilians of the American Field Service, and October 5, 1990, for the U.S. Civilian Employees of American Airlines, the dates on which such service was certified as active duty.

For historical purposes, the dates on which service was certified as active military service under Pub. L. 95-202 for the following groups are provided:

§ 3.7(x)(1) Women's Air Force Service Pilots March 8, 1979

§ 3.7(x)(2) Signal Corps Female Telephone Operators Unit of World War I May 15, 1979

§ 3.7(x)(3) Engineer Field Clerks August 31, 1979

§ 3.7(x)(4) Women's Army Auxiliary Corps March 18, 1980

§ 3.7(x)(5) Quartermaster Corps Female Clerical Employees Serving With the American Expeditionary Forces in World War I January 22, 1981

§ 3.7(x)(6) Civilian Employees of Pacific Naval Air Bases Who Actively Participated in Defense of Wake Island During World War II January 22, 1981

§ 3.7(x)(7) Reconstruction Aides and Dietitians in World War I July 6, 1981

§ 3,7(x)(8) Male Civilian Ferry Pilots July 17, 1981

§ 3.7(x)(9) Wake Island Defenders from Guam April 7, 1982

§ 3.7(x)(10) Civilian Personnel Assigned to the Secret Intelligence Element of the OSS December 27, 1982

§ 3.7(x)(11) Guam Combat Patrol May 10. 1983

§ 3.7(x)(12) Quartermaster Corps Keswick Crew on Corregidor World War II February 7, 1984

§ 3.7(x)(13) U.S. Civilian Volunteers Who Actively Participated in the Defense of Bataan February 7, 1984

§ 3.7(x)(14) United States Merchant Seamen Who Served on Blockships in Support of Operation Mulberry October 18, 1985

§ 3.7(x)(15) American Merchant Seamen in Oceangoing Service during the Period of Armed Conflict, December 7, 1941 to August 15, 1945 January 19, 1988

§ 3.7(x)(16) Civilian Navy Identification Friend or Foe Technicians Who Served in the Combat Areas of the Pacific during World War II (December 7, 1941 to August 15, 1945) August 2, 1988

REGULATORY AMENDMENT

3-91-5

Regulation Affected: 38 CFR 3.1000(g)

EFFECTIVE DATE OF REGULATION: April 24, 1991

Date Secretary Approved Regulation: March 18, 1991

Federal Register Citation: 56 FR 18732-3 (April 24, 1991), as corrected by 56 FR 24239 (May 29, 1991)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 3.1000. The current regulation governing the payment of educational assistance as an accrued benefit does not identify all educational assistance programs that result in periodic monetary benefits which may be released as accrued benefits subject to the provisions of 38 U.S.C. 5121, if they are due and unpaid on the date of the veteran's death. 38 CFR 3.1000(g) has been amended to include educational assistance under the provisions of 38 U.S.C. Chapters 30 or 32, and 10 U.S.C. Chapter 106 as potential accrued benefits.

REGULATORY AMENDMENT

3-91-6

Regulations Affected: 38 CFR 3.1(d) and 3.3(b)

EFFECTIVE DATE OF REGULATION: April 29, 1991

Date Secretary Approved Regulation: March 26, 1991

Federal Register Citation: 56 FR 19578-9 (April 29, 1991) as corrected by 56 FR 22910 (May 17, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 3.1. As a result of the following amendment to 38 CFR 3.3, the cross-reference at § 3.1(d)(2) has been amended.

Section 3.3. In a memorandum dated October 11, 1990, the General Counsel held that 38 CFR 3.3(b)(3)(iii) and 3.3(b)(4)(iii) do not clearly reflect the provisions of 38 U.S.C. 1541 and 1542; specifically, that the veteran's service must have been during a period of war. 38 CFR 3.3(b)(3) and 3.3(b)(4) have been amended to clarify this eligibility requirement.

REGULATORY AMENDMENT

3-91-7

Regulations Affected: 38 CFR 1.575(b); 3.3(a); 3.55; 3.215; 3.400(d), (u), (v) and (w); 3.501(i); 3.551(h); 3.1600(f); and 3.1612(h)

EFFECTIVE DATE OF REGULATION: November 1, 1990, except the provisions concerning Medicaid payments (§§ 3.501(i)(3) and 3.551(h)) which are effective November 5, 1990, the date that Pub. L. 101-508 was signed into law.

Date Secretary Approved Regulation: April 10, 1991

Federal Register Citation: 56 FR 25043-5 (June 3, 1991) as corrected by 56 FR 28226 (June 10, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 8053 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, amended 38 U.S.C. 5101 to authorize the Secretary to require the disclosure of the social security number of any individual, as well as those of his or her dependents, who applies for or is in receipt of compensation or pension benefits. The Secretary has decided to exercise this authority.

Section 8002 of Pub. L. 101-508 amended 38 U.S.C. 1502(a) to eliminate the presumption of total disability at age 65 for pension purposes.

Section 8004 of Pub. L. 101-508 amended 38 U.S.C. 103 to eliminate the eligibility of remarried surviving spouses and married children for reinstatement of benefits when that marital relationship terminates unless the disqualifying marital relationship was void or was annulled. Similarly, the fact that a surviving spouse of a veteran has terminated a relationship with another person, in which the surviving spouse has held himself or herself out openly to the public as the spouse of that person, has also been eliminated as a basis for the reinstatement of benefits.

Section 8003 of Pub. L. 101-508 amended 38 U.S.C. 5503 to require the reduction of pension benefits to $90 per month when a veteran, who has neither spouse nor child, is receiving Medicaid-covered nursing home care. This reduction will occur after the month of admission to the nursing home. A veteran is not liable to the United States for any payment of pension in excess of the permitted amount that is paid to or for the veteran by reason of the inability or failure of VA to reduce the pension unless such inability or failure is the result of a willful concealment by the veteran of information necessary to make the reduction. The provisions of this statutory amendment expire on September 30, 1992.

Section 8042 of Pub. L. 101-508 amended 38 U.S.C. 2303(b)(2) to eliminate eligibility for the $150 plot allowance based solely on wartime service. This change applies to deaths occurring on or after November 1, 1990.

Section 8041 of Pub. L. 101-508 amended 38 U.S.C. 2306(d) to eliminate the payment of the monetary allowance in lieu of VA-provided headstone or marker for deaths occurring on or after November 1, 1990.

Section 3.3. 38 CFR 3.3(a)(3)(v) has been amended to eliminate the presumption of total disability at age 65 for pension purposes. The reference to "vicious habits" that appears in § 3.3(a)(3)(v) has been removed, as that term no longer appears in the statutory language (38 U.S.C. 1521 as amended by Pub. L. 95-588).

Section 3.55. The authority citation at the end of 38 CFR 3.55 has been amended to cite 38 U.S.C. 103.

Section 3.215. 38 CFR 3.215 has been amended by removing the words "On or after" where they appear, and adding, in their place, the words "With respect to claims filed prior to November 1, 1990, on or after".

Section 3.342. 38 CFR 3.342(a) has been amended by removing the words "On or after" and adding, in their place, the words "With respect to claims filed prior to November 1, 1990, on or after".

Section 3.400. 38 CFR 3.400(d) has been amended to eliminate the presumption of total disability at age 65 for pension purposes. 38 CFR 3.400(u) and (v) have been amended to eliminate the eligibility of remarried surviving spouses and married children for reinstatement of benefits when that marital relationship terminates unless the disqualifying marital relationship was void or was annulled. 38 CFR 3.400(w) has been amended to eliminate the termination of a relationship of a surviving spouse of a veteran with another person, in which the surviving spouse has held himself or herself out openly to the public as the spouse of that person, as a basis for the reinstatement of benefits.

Section 3.501. 38 CFR 3.501(i)(3) has been redesignated as § 3.501(i)(4) and a new § 3.501(i)(3) has been added toestablish an effective date for the reduction of pension benefits to $90 per month when a veteran, who has neither spouse nor child, is receiving Medicaid-covered nursing home care, and to establish an effective date for the reduction of pension benefits when a veteran, who has neither spouse nor child, is receiving Medicaid-covered nursing home care, and conceals information necessary to make the reduction to $90 per month.

Section 3.551. 38 CFR 3.551(h) has been added to require the reduction of pension benefits to $90 per month when a veteran, who has neither spouse nor child, is receiving Medicaid-covered nursing home care. This reduction will occur after the month of admission to the nursing home. A veteran is not liable to the United States for any payment of pension in excess of the permitted amount that is paid to or for the veteran by reason of the inability or failure of VA to reduce the pension unless such inability or failure is the result of a willful concealment by the veteran of information necessary to make the reduction. The provisions of this statutory amendment expire on September 30, 1992.

Section 3.1600. In 38 CFR 3.1600, paragraphs (f)(2), (f)(3), and (f)(4) have been redesignated as paragraphs (f)(3), (f)(4), and (f)(5), respectively. A new § 3.1600(f)(2) has been added. In the newly redesignated § 3.1600(f)(3), the words "either served during a period of war or" have been removed.

Section 3.1612. 38 CFR 3.1612(h) has been added to eliminate the payment of the monetary allowance in lieu of VA-provided headstone or marker for deaths occurring on or after November 1, 1990.

REGULATORY AMENDMENT

3-91-8

Regulation Affected: 38 CFR 3.960(b) and (c)

EFFECTIVE DATE OF REGULATION: June 25, 1991

Date Secretary Approved Regulation: May 31, 1991

Federal Register Citation: 56 FR 28823-4 (June 25, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

In the Federal Register of September 16, 1987 (52 FR 34906-10), VA published an amendment to 38 CFR 3.26, which dealt with section 306 and old-law pension annual income computations. However, the cross-reference to § 3.26 that appears at § 3.960 concerning section 306 and old-law pension protection was not amended.

Section 3.960. In 38 CFR 3.960(b)(5), the words "§ 3.26(b)" are removed, and the words "§ 3.26(c)" are added in their place. In § 3.960(c), the words "§ 3.26(a)(1) or (2) or (b)(1)" are removed, and the words "§ 3.26(a), (b), or (c)" are added in their place.

REGULATORY AMENDMENT

3-91-9

Regulation Affected: 38 CFR 3.311a(c) and (d)

EFFECTIVE DATE OF REGULATION: September 25, 1985

Date Secretary Approved Regulation: September 16, 1991

Federal Register Citation: 56 FR 51651-3 (October 15, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Under 38 CFR 1.17(c), when VA determines that a significant statistical association exists between exposure to a herbicide containing dioxin and any disease, 38 CFR 3.311a shall be amended to provide guidelines for the establishment of service connection for the disease. These determinations are to be made after receiving the advice of the Veterans Advisory Committee on Environmental Hazards (VACEH) based on its evaluation of scientific or medical studies.

In a public meeting on May 16-17, 1990, the VACEH met in Washington, DC. At that meeting, the VACEH considered more than 80 scientific and medical documents relating to the connection, if any, between exposure to a herbicide containing dioxin and the subsequent development of soft-tissue sarcoma (STS). The VACEH found that the relative weights of valid positive and valid negative studies permitted the conclusion that it is at least as likely as not that there is a significant statistical association between exposure to a herbicide containing dioxin and STS. The Secretary has accepted that recommendation.

There is disagreement even among pathologists as to what tumors the term "soft-tissue sarcoma" encompasses. With the assistance of the Veterans Health Administration and the VACEH, we compiled a list of those tumors which we consider to be soft-tissue sarcomas and included it in the regulation. For compensation purposes, such tumors must be malignant and arise from tissue of mesenchymal origin, including muscle, fat, blood or lymph vessels, or connective tissue (but not cartilage or bone). Tumors of infancy or childhood, and those having a strong, known causal association with a specific etiology have been excluded because it is unlikely that there is a reasonable probability of a significant statistical association between such tumors and exposure to a herbicide containing dioxin.

Further, because the Nehmer decision invalidated VA's original service connection determinations in § 3.311a ab initio, and because those determinations were the original regulatory response to the mandate in section 5(a)(1) of Pub. L. 98-542, the effective date of the amendment to § 3.311a(c) is September 25, 1985, the original effective date of the section.

In order to insure equitable treatment of veterans who may have been exposed to herbicides containing dioxin during service other than in Vietnam during the Vietnam era, e.g., in activities related to testing, storage or shipping of herbicides, the restriction limiting the provisions of § 3.311a to veterans who served in Vietnam during the Vietnam era has been removed.

Section 3.311a. 38 CFR 3.311a(c) has been amended to remove the restriction limiting the provisions of § 3.311a to veterans who served in Vietnam during the Vietnam era, and to provide for service connection for STS. 38 CFR 3.311a(d) has been removed and reserved.

REGULATORY AMENDMENT

3-91-10

Regulations Affected: 38 CFR 3.311a(c) and (d)

EFFECTIVE DATE OF REGULATION: The change to § 3.311a(d) is effective September 25, 1985. The change to § 3.311a(c) is effective October 21, 1991.

Date Secretary Approved Regulation: September 13, 1991

Federal Register Citation: 56 FR 52473-4 (October 21, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

The VACEH held a public meeting on August 22-23, 1990, in Washington, DC. At that meeting, the VACEH considered 30 scientific and medical documents relating to the association, if any, between exposure to a herbicide containing dioxin and either chloracne or porphyria cutanea tarda (PCT). The VACEH found that the relative weights of valid positive and valid negative studies permit the conclusion that there is a significant statistical association between exposure to a herbicide containing dioxin and the manifestation, within nine months of such exposure, of chloracne. The VACEH also found that the relative weights of valid positive and valid negative studies do not permit the conclusion that there is a significant statistical association between exposure to a herbicide containing dioxin and the subsequent development of PCT. The Secretary has accepted these recommendations.

In Nehmer, the court invalidated VA's requirement of proof of a causal relationship in determining service connection for diseases associated with dioxin exposure. Accordingly, 38 CFR 3.311a(d) was removed and reserved pending the Secretary's determinations for other diseases, pursuant to the court's remand order, after receiving the advise of the VACEH. A revised § 3.311a(d) has been reinserted.

Further, because the Nehmer decision invalidated VA's original service connection determinations in § 3.311a ab initio, and because those determinations were the original regulatory response to the mandate in section 5(a)(1) of Pub. L. 98-542, the effective date of the revised § 3.311a(d) is September 25, 1985, the original effective date of the section.

Section 3.311a. 38 CFR 3.311a(c) has been amended to change the manifestation period for chloracne from three to nine months. 38 CFR 3.311a(d) has been reinserted to implement the Secretary's decision that there is no significant statistical association between exposure to dioxin and the subsequent development of PCT.

REGULATORY AMENDMENT

3-91-11

Regulations Affected: 38 CFR 3.2(i), 3.3(a), 3.17 and 3.54(a)

EFFECTIVE DATE OF REGULATION: April 16, 1991

Date Secretary Approved Regulation: September 24, 1991

Federal Register Citation: 56 FR 57985-6 (November 15, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 332 of the Persian Gulf War Veterans' Benefits Act of 1991, Pub. L. 102-25, amended 38 U.S.C. 101 to add the Persian Gulf War, beginning August 2, 1990, and terminating on a date to be determined by Presidential proclamation or law, as an official "period of war" for the purpose of veterans benefits.

Section 333 of Pub. L. 102-25 amended 38 U.S.C. 1501 and 1541 to provide pension eligibility for Persian Gulf War veterans and their surviving spouses.

Section 3.2. 38 CFR 3.2(i) has been added to include the Persian Gulf War as a period of war.

Section 3.3. 38 CFR 3.3(a)(3) the introductory text has been amended to include the Persian Gulf War.

Section 3.17. 38 CFR 3.17 has been amended to include the Persian Gulf War.

Section 3.54. 38 CFR 3.54(a)(3)(viii) has been added to reflect the statutory delimiting date for the surviving spouse of a Persian Gulf War veteran.

REGULATORY AMENDMENT

3-91-12

Regulations Affected: 38 CFR 3.501(n) and 3.853

EFFECTIVE DATE OF REGULATION: November 1, 1990

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 56 FR 65852-3 (December 19, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 8001 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, added 38 U.S.C. 5505 to prohibit the payment of compensation to or for an incompetent veteran, having neither spouse, child, nor dependent parent, whose estate, excluding the value of the veteran's home, exceeds $25,000 until the estate has been reduced to less than $10,000. If the veteran is subsequently rated competent for more than 90 days, the withheld compensation will be paid in a lump-sum payment; however, a lump-sum payment may not be made to or for a veteran who, within that 90 day period, dies or is again rated incompetent. These provisions expire on September 30, 1992.

Section 3.501. 38 CFR 3.501(n) has been added to require termination of compensation on the last day of the first month in which the veteran's estate exceeds $25,000.

Section 3.853. 38 CFR 3.853 has been added to prohibit the payment of compensation to or for an incompetent veteran, having neither spouse, child, nor dependent parent, whose estate, excluding the value of the veteran's home, exceeds $25,000 until the estate has been reduced to less than $10,000.

REGULATORY AMENDMENT

3-91-13

Regulations Affected: 38 CFR 3.342(c) and 3.1612(b), (c), and (e)

EFFECTIVE DATE OF REGULATION: December 18, 1989

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 56 FR 65851-2 (December 19, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 114 of the Veterans' Benefits Amendments of 1989, Pub. L. 101-237, amended 38 U.S.C. 1524 (formerly 524) to lower from 50 years to 45 years the maximum age at which veterans awarded pension must undergo an evaluation to determine whether achievement of a vocational goal is reasonably feasible through a program of vocational training. 38 U.S.C. 1524 was also amended to protect the permanent and total evaluation of a veteran, who secures employment within the scope of the vocational goal identified by his or her vocational rehabilitation plan, from termination by reason of employability, until the veteran has maintained this employment for not less than 12 consecutive months.

Section 501 of Pub. L. 101-237 amended 38 U.S.C. 2306(d) to authorize payment of the monetary allowance in lieu of furnishing a headstone or marker at Government expense when the headstone or marker is purchased prior to the veteran's death. Since this benefit is available when the headstone is purchased prior to the veteran's death, VA will discontinue making reimbursement for the cost of adding the veteran's identifying information to an existing headstone or marker if death occurred on or after December 18, 1989. It should be noted that section 8041 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, eliminated the payment of the monetary allowance in lieu of VA-provided headstone or marker for deaths occurring on or after November 1, 1990.

Section 3.342. 38 CFR 3.342(c)(1) and (c)(2) have been amended to lower from 50 years to 45 years the maximum age at which veterans awarded pension must undergo an evaluation to determine whether achievement of a vocational goal is reasonably feasible through a program of vocational training. 38 CFR 3.342(c)(3) has been added to protect the permanent and total evaluation of a veteran, who secures employment within the scope of the vocational goal identified by his or her vocational rehabilitation plan, from termination by reason of employability, until the veteran has maintained this employment for not less than 12 consecutive months.

Section 3.1612. In 38 CFR 3.1612, paragraph (e)(3) is redesignated as paragraph (e)(4), and paragraph (e)(2)(iii) is redesignated as paragraph (e)(3). 38 CFR 3.1612(b)(3), (c), (e)(1), and (e)(2)(i) have been amended to authorize payment of the monetary allowance in lieu of furnishing a headstone or marker at Government expense when the headstone or marker is purchased prior to the veteran's death, and to discontinue the reimbursement for the cost of adding the veteran's identifying information to an existing headstone or marker if death occurred on or after December 18, 1989.

REGULATORY AMENDMENT

3-91-14

Regulation Affected: 38 CFR 3.272(k)

EFFECTIVE DATE OF REGULATION: January 21, 1992

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 56 FR 65846-7 (December 19, 1991)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

On December 13, 1979, 42 U.S.C. 5044(g) was amended by section 9 of the Domestic Volunteer Service Act Amendments of 1979, Pub. L. 96-143, to provide that payments under a Domestic Volunteer Service Act (DVSA) program be excluded from consideration when determining entitlement to other governmental programs unless the Director of the ACTION Agency determines that a volunteer's payments equal or exceed the minimum wage. As a result, VA published in the Federal Register of January 29, 1981 (46 FR 9579-80), an amendment to 38 CFR 3.272 which added paragraph (k) for the purposes of excluding such payments from countable income under the Improved Pension Program. That rulemaking, however, erroneously listed the Older American Community Service Program as a DVSA program.

Section 3.272. 38 CFR 3.272(k) has been amended to remove the Older American Community Service Program.

REGULATORY AMENDMENT

3-91-15

Regulation Affected: 38 CFR 3.500(q)

EFFECTIVE DATE OF REGULATION: January 21, 1992

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 56 FR 65847 (December 19, 1991)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

38 U.S.C. 5306 requires that, upon the filing of a written renouncement, payment of monetary benefits will be terminated. Formerly, 38 CFR 3.500(q) provided that the effective date of discontinuance when benefits are renounced was the date of last payment. Because of differences in workload among regional offices, as well as fluctuations within the same office, some renouncements were processed less expeditiously than others, and claims received by VA on the same date resulted in benefits being terminated on different dates. A later effective date might not be advantageous to some beneficiaries who, for whatever reason, wish to terminate VA benefits without delay.

Section 3.500. 38 CFR 3.500(q) has been amended to provide for the termination of benefits on the last day of the month in which the renouncement is received.

REGULATORY AMENDMENT

3-91-16

Regulations Affected: 38 CFR 3.104(a) and 3.105(a)

EFFECTIVE DATE OF REGULATION: January 21, 1992

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 56 FR 65845-6 (December 19, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

The current rulemaking establishes by regulation the point at which a decision becomes final and binding upon all VA field offices. That point is reached when VA issues written notification on any issues for which it is required that VA provide notice to the claimant in accordance with 38 U.S.C. 5104. Once VA issues such notice, the decision may be changed only upon a showing of clear and unmistakable error or upon review by duly constituted appellate authorities.

Section 3.104. 38 CFR 3.104(a) has been amended to provide that a decision becomes final and binding upon all VA field offices when VA issues written notification on any issues for which it is required that VA provide notice to the claimant in accordance with 38 U.S.C. 5104.

Section 3.105. 38 CFR 3.105(a) has been amended by removing the words "determinations on which an action was predicated", and adding, in their place, the words "determinations which are final and binding."

REGULATORY AMENDMENT

3-91-17

Regulation Affected: 38 CFR 3.7(x)

EFFECTIVE DATE OF REGULATION: The effective dates are April 8, 1991 (§ 3.7(x)(20)) and May 3, 1991 (§ 3.7(x)(21)).

Date Secretary Approved Regulation: November 18, 1991

Federal Register Citation: 56 FR 65847-8 (December 19, 1991)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

The Secretary of the Air Force held under Pub. L. 95-202 that the service of members of the following groups is active duty for VA benefit purposes: Civilian Crewmen of the United States Coast and Geodetic Survey Vessels Who Performed Their Service in Areas of Immediate Military Hazard While Conducting Cooperative Operations with and for the United States Armed Forces Within a Time Frame of December 7, 1941 to August 15, 1945; and Honorably Discharged Members of the American Volunteer Group (Flying Tigers) Who Served During the Period December 7, 1941 to July 18, 1942. The effective dates are April 8, 1991 for Civilian Crewmen of the United States Coast and Geodetic Survey Vessels, and May 3, 1991 for Honorably Discharged Members of the American Volunteer Group (Flying Tigers).

Section 3.7. 38 CFR 3.7(x)(20) and (21) have been added to include service performed by Civilian Crewmen of the United States Coast and Geodetic Survey Vessels and Honorably Discharged Members of the American Volunteer Group (Flying Tigers) as active military service.

REGULATORY AMENDMENT

3-91-18

Regulations Affected: 38 CFR 3.454(b), (c), and (d); 3.501(i); and 3.551(a), (b), (c), (d), (e), (f), (g), and (h)

EFFECTIVE DATE OF REGULATION: The amendments that pertain to Improved Pension rates for certain veterans receiving institutional care are effective February 1, 1990. The amendments pertaining to veterans receiving Section 306 pension who are institutionalized are effective January 21, 1992.

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 56 FR 65848-51 (December 19, 1991)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 111 of the Veterans' Benefits Amendments of 1989, Pub. L. 101-237 amended 38 U.S.C. 5503(a)(1) to require reduction of Improved Pension for veterans without dependents only if they are admitted to a domiciliary or nursing home by VA or at VA expense. Under these conditions, a veteran's monthly pension may not exceed $90 effective the end of the third full calendar month following the month of admission. Section 101 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. 102-86, amended 38 U.S.C. 5503 to provide for reduction of Improved Pension to $90 rather than $60 monthly for veterans without dependents effective the first of the month following readmission to a domiciliary or nursing home by VA or at VA expense when the readmission is within six months of a period during which there was a required reduction.

In passing Pub. L. 101-237, Congress clearly intended to eliminate pension reductions due to hospitalization and to increase the maximum monthly pension payable to veterans who are receiving long-term domiciliary or nursing home care at VA expense without creating a large estate. In order to achieve those goals, when a veteran with no dependents who is receiving domiciliary or nursing home care is transferred to a hospital and then returns to the domiciliary or nursing home, the entire period will be treated as continuous domiciliary or nursing home care if the period of hospitalization is for less than six months. Likewise, if a veteran dies after transfer from a domiciliary or nursing home to a hospital, the period of hospitalization will be considered as continuous domiciliary or nursing home care. If hospitalization of less than six months results in the discharge of the veteran from care at VA expense, then his or her full rate of pension will be restored effective the date of transfer to the hospital.

In an opinion dated June 15, 1990 (O.G.C. Prec. 19-90), the General Counsel held that the previous amendments to 38 U.S.C. 5503(a)(1) have been erroneously applied to veterans receiving pension under section 306 of Pub. L. 95-588. Consequently, the rate payable for veterans without dependents receiving section 306 pension who are institutionalized at VA expense for the requisite period may not exceed $50 per month. In addition, the effective date for reduction for such admissions will be the end of the second full calendar month following the month of admission and, for readmissions within six months following termination of a period of treatment or care of not less than two full calendar months, reduction will be from date of readmission.

Section 3.454. In 38 CFR 3.454(b)(1) and (c), remove the dollar amount "$60", wherever it appears, and add, in its place, the dollar amount "$50". In § 3.454(b)(2) and (d), remove "§ 3.551(c)" and add, in its place, "§ 3.551(d) or (e)(2)". In § 3.454(d), after the word "monthly" add the words "if reduction is under § 3.551(d) or (e)(2), or $90 monthly if reduction is under § 3.551(e)(1)". 38 CFR 3.454(b)(3) is added to provide for an apportionment when a married veteran's improved pension under 38 U.S.C. 1521(b) (formerly 521(b)) is reduced to $90 monthly under 38 CFR 3.551(e)(1).

Section 3.501. 38 CFR 3.501(i) has been amended to provide effective dates for reduction upon readmission, and to conform with the newly adopted amendments to 38 CFR 3.551. 38 CFR 3.501(i)(3) and (4) are redesignated as paragraphs (6) and (7) respectively, new paragraphs (3), (4) and (5) are added, and paragraphs (1) and (2) are revised.

Section 3.551. In 38 CFR 3.551(b), the existing text is designated as (b)(1), and new paragraphs (b)(2) and (3) are added concerning the reduction of old-law pension upon readmission. Paragraphs (d), (f), and (g) are redesignated as (f), (g), and (h), respectively, a new paragraph (d) concerning improved pension prior to February 1, 1990, is added, paragraph (e) is revised to pertain to improved pension after January 31, 1990, and redesignated paragraph (h)(1) is revised to reflect the reduction of improved pension upon hospitalization. In § 3.551(a), in the first sentence, after the word "reduction" and before the word "when" add the words "as specified below". In redesignated § 3.551(b)(1), remove the phrase ", and service pension based on entitlement prior to July 1, 1960" from the heading. In § 3.551(c), remove the phrase ", improved pension, and service pension based on entitlement after June 30, 1960" from the heading. In § 3.551(c)(1), after the word "furnished"and before the word "domiciliary" add the words "hospital, nursing home or", remove the dollar amount "$60" and add, in its place, the dollar amount "$50". Remove paragraphs (c)(2) and (4), (6) and (7), and redesignate paragraphs (c)(3) and (c)(5) as (c)(2) and (c)(3), respectively. In the newly redesignated paragraph (c)(2), remove the words "or (2)". In the newly redesignated paragraphs (c)(2) and (c)(3), remove the dollar amount "$60" wherever it appears, and add, in its place, the dollar amount "$50". In the newly redesignated paragraph (h)(2), remove the paragraph designations "(c)(2)", "(c)(3)", and "(g)(1)" wherever they appear, and add, in their place, the paragraph designations "(d)", "(e)", and "(h)(1)", respectively. In the newly redesignated paragraph (h)(3), after the word "monthly" and before the word "payable" add the phrase "or $90, if reduction is under paragraph (e)(1)".

REGULATORY AMENDMENT

3-92-1

Regulations Affected: 38 CFR 3.216 and 3.500(w)

EFFECTIVE DATE OF REGULATION: November 5, 1990.

Date Secretary Approved Regulation: November 13, 1991

Federal Register Citation: 57 FR 8267-8 (March 9, 1992)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 8053 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, amended 38 U.S.C. 5101 (formerly 3001) by authorizing the Secretary to require any person who applies for or receives compensation or pension benefits to disclose his or her social security number, and the social security numbers of any dependents for whom benefits are being paid, to VA upon request. An individual is not required to furnish VA with a social security number for any person to whom a social security number has not been assigned. VA will discontinue benefits when a beneficiary fails to disclose his or her social security number, or those of his or her dependents, within 60 days of the date of request. This time period is consistent with § 3.103(b)(2).

Section 3.216. New section 3.216 has been added to require any person who applies for or receives compensation or pension benefits to disclose his or her social security number, and the social security numbers of any dependents for whom benefits are being paid, to VA upon request.

Section 3.500. New paragraph (w) has been added to provide the effective date of termination or reduction of benefits when a beneficiary fails to furnish a required social security number.

REGULATORY AMENDMENT

3-92-2

Regulations Affected: 38 CFR 3.30(a, b, c, d, e, and f); 3.55(b, c, d,and e); 3.215; 3.309(d); 3.343(d); 3.400(u, v, and w); and 3.951

EFFECTIVE DATE OF REGULATION: August 14, 1991.

Date Secretary Approved Regulation: February 7, 1992

Federal Register Citation: 57 FR 10424-26 (March 26, 1992)

The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Section 102 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. 102-86, amended 38 U.S.C. 1315 to authorize the Secretary to make payment of parents' DIC less frequently than monthly if the amount of the annual benefit is less than 4 percent of the maximum annual rate payable under 38 U.S.C. 1315. The Secretary has decided to exercise that authority by authorizing semiannual payments.

Section 8004 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, eliminated the eligibility of remarried surviving spouses and married children for reinstatement of benefits when that marital relationship terminates unless the disqualifying marital relationship was void or was annulled. Similarly, the fact that a surviving spouse of a veteran terminated a relationship with another person, in which the surviving spouse held himself or herself out openly to the public as the spouse of that person, was also eliminated as a basis for the reinstatement of benefits. These provisions apply to claims filed after October 31, 1990. Section 502 of Pub. L. 102-86 provides that the amendments made by section 8004 of Pub. L. 101-508 do not apply with respect to any individual who on October 31, 1990, was a surviving spouse or child within the meaning of title 38, United States Code, unless after that date that individual marries or, in the case of a surviving spouse, begins to live with another person while holding himself or herself out openly to the public as that person's spouse.

Section 2 of the Radiation-Exposed Veterans Compensation Act of 1986, Pub. L. 100-321, provided a 40-year presumptive period for all but one of the conditions for which presumptive service connection may be granted based upon participation in a radiation-risk activity during active military service; a 30-year presumptive period was provided for leukemia. Under Pub. L. 100-321, reservists who participated in a radiation-risk activity while on active duty for training or inactive duty training are not entitled to presumptive service connection. Section 104 of Pub. L. 102-86 amended 38 U.S.C. 1112 (formerly 312) to provide for a 40-year presumptive period for the occurrence of leukemia in veterans exposed to radiation, and section 105 of Pub. L. 102-86 extended presumptive service connection to individuals who were engaged in a radiation-risk activity during active duty for training or inactive duty training.

The General Counsel, in O.G.C. Prec. 66-90, determined that VA had no authority to "grandfather" or protect disability evaluations assigned under superceded rating criteria. Section 103 of Pub. L. 102-86 amended 38 U.S.C. 1155 to provide that a modification to the rating schedule occurring after August 14, 1991, will not result in a reduction of any disability evaluation unless that disability has actually improved.

Section 3.30. The section heading, introductory text and paragraph headings for paragraphs (a), (b), (c) and (d) have been revised. Paragraph (e) has been redesignated as paragraph (f), and a new paragraph (e) has been added. These amendments implement the Secretary's decision to authorize semiannual payments for parents' DIC.

Section 3.55. 38 CFR 3.55(b), (c), (d), and (e) have been amended to authorize the reinstatement of benefits to any individual who on October 31, 1990, was a surviving spouse or child within the meaning of title 38, United States Code, unless after that date that individual marries or, in the case of a surviving spouse, begins to live with another person while holding himself or herself out openly to the public as that person's spouse.

Section 3.215. 38 CFR 3.215 has been amended to provide for the reinstatement of benefits to any individual who on October 31, 1990, was a surviving spouse within the meaning of title 38, United States Code, unless after that date that individual marries or begins to live with another person while holding himself or herself out openly to the public as that person's spouse.

Section 3.309. 38 CFR 3.309(d)(3) has been amended to provide a 40-year presumptive period for leukemia. 38 CFR 3.309(d)(4)(i) has been amended to extend presumptive service connection to individuals who were engaged in a radiation-risk activity during active duty for training or inactive duty training.

Section 3.343. 38 CFR 3.343(d) has been removed since that paragraph is no longer relevant.

Section 3.400. 38 CFR 3.400(u)(3), (u)(4), (v)(3), (v)(4) and (w) have been amended to reflect the statutory provision for the reinstatement of benefits to any individual who on October 31, 1990, was a surviving spouse or child within the meaning of title 38, United States Code, unless after that date that individual marries or, in the case of a surviving spouse, begins to live with another person while holding himself or herself out openly to the public as that person's spouse.

Section 3.951. The current text is designated as paragraph (b) and a new paragraph (a) is added to provide that a modification to the rating schedule occurring after August 14, 1991, will not result in a reduction of any disability evaluation unless that disability has actually improved.

REGULATORY AMENDMENT

3-92-3

Regulations Affected: 38 CFR 3.1610

EFFECTIVE DATE OF REGULATION: June 30, 1992

Date Secretary Approved Regulation: May 27, 1992

Federal Register Citation: 57 FR 29025 (June 30, 1992)

The purpose of the following comments on the changes included in this amendment to VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

VA regional office Directors currently are authorized to arrange for the burial of unclaimed bodies of veterans in national cemeteries. Several states do not have national cemeteries or have national cemeteries that are inconvenient to some locations. Many states, however, do operate cemeteries or cemetery sections used solely for the burial of those eligible for burial in national cemeteries. Where these cemeteries meet the high standards of operation currently required of national cemeteries, they may prove to be acceptable alternatives to national cemeteries.

Under this amendment, regional office Directors are authorized to pay the cost of transporting unclaimed bodies to certain state-owned cemeteries or cemetery sections as well as to national cemeteries, provided that the total amount paid by VA does not exceed the total amount payable if burial had been in a national cemetery. The nonservice-connected plot allowance may be included as part of the total amount payable if entitlement is otherwise established. A state is not obligated to allow burial, and regional office Directors are not required to arrange for burial in state-owned cemeteries. The amendment offers an option that may be exercised if an acceptable alternative is available.

Section 3.1610. This section is revised to allow regional office Directors to pay the cost of transporting unclaimed bodies to certain state-owned cemeteries or cemetery sections as well as to national cemeteries in certain circumstances.

REGULATORY AMENDMENT

3-92-4

Regulations Affected: 38 CFR 3.316

EFFECTIVE DATE OF REGULATION: July 31, 1992

Date Secretary Approved Regulation: May 27, 1992

Federal Register Citation: 57 FR 29025 (July 31, 1992)

The purpose of the following comments on the changes included in this amendment to VA regulations is to inform all concerned why these changes are being made. This comment is not regulatory.

Some Naval personnel were experimentally exposed to mustard gas during full-body, field or chamber tests of protective equipment and clothing conducted at the Naval Research Laboratory between 1943 and 1945. Similar testing was conducted at other locations during World War II. These World War II tests were classified, participants were instructed not to discuss their involvement, and medical records associated with the tests are generally unavailable. No long-term follow-up examinations were conducted. For these reasons, some participants may not have filed claims with VA for disabilities resulting from mustard gas poisoning, or, if they did file claims, may have experienced difficulty in establishing entitlement to benefits.

The special circumstances surrounding these World War II testing programs have placed veterans who participated in them at a disadvantage when attempting to establish entitlement to compensation for disability or death resulting experimental exposure. This regulation has been added to specify that if exposure occurred under these circumstances, disabilities or deaths resulting from certain diseases are to be recognized as connected to a veteran's exposure in-service.

A review of the available medical literature by Veterans Health Administration personnel indicates that the chronic, long-term effects of acute mustard gas poisoning may include laryngitis, bronchitis, emphysema, asthma, conjunctivitis, keratitis, and corneal opacities. Chronic forms of these conditions which developed subsequent to experimental exposure during World War II will be service-connected.

Section 3.316. This section is added to 38 CFR Part 3 to provide that exposure to mustard gas while participating in full-body, field or chamber experiments to test protective clothing or equipment during World War II, together with the development of a chronic form of any of the followingconditions manifested subsequent thereto, is sufficient to establish service connection for that condition: laryngitis, bronchitis, emphysema, asthma, conjunctivitis, keratitis, and corneal opacities.

REGULATORY AMENDMENT

3-92-5

Regulation Affected: 38 CFR 3.7(x)

EFFECTIVE DATE OF REGULATION: The effective date is May 13,1992.

Date Secretary Approved Regulation: July 31, 1992

Federal Register Citation: 57 FR 43904-05 (September 23, 1992)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

The Secretary of the Air Force held under Pub. L. 95-202 that the service of members of the following groups is active duty for VA benefit purposes: U.S. Civilian Flight Crew and Aviation Ground Support Employees of United Air Lines (UAL), Who Served Overseas as a Result of UAL's Contract With the Air Transport Command During the Period December 14, 1941, through August 14, 1945; and U.S. Civilian Flight Crew and Aviation Ground Support Employees of Transcontinental and Western Air (TWA), Inc., Who Served Overseas as a Result of TWA's Contract With the Air Transport Command During the Period December 14, 1941, through August 14, 1945.

Section 3.7. 38 CFR 3.7(x)(22) and (23) have been added to include service performed by members of U.S. Civilian Flight Crew and Aviation Ground Support Employees of United Air Lines (UAL), Who Served Overseas as a Result of UAL's Contract With the Air Transport Command and members of U.S. Civilian Flight Crew and Aviation Ground Support Employees of Transcontinental and Western Air (TWA), Inc., Who Served Overseas as a Result of TWA's Contract With the Air Transport Command.

REGULATORY AMENDMENT

3-92-6

Regulation Affected: 38 CFR 3.103(b)(1), 3.103(f), and 3.105(h)(2)

EFFECTIVE DATE OF REGULATION: The effective date is December 2,1992.

Date Secretary Approved Regulation: October 6, 1992

Federal Register Citation: 57 FR 56992-93 (December 2, 1992)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

38 U.S.C. 5104(a) provides that when the Secretary of Veterans Affairs makes a decision affecting the provision of benefits to a claimant, a notice of that decision must be sent to the claimant and the claimant's representative. It has been a long-standing VA policy to provide a claimant's representative with a copy of each notice to the claimant affecting adjudication of a claim, which clearly includes notice of decisions as well as requests for information, etc. (See 38 CFR 1.525(d)). We believe it is appropriate, however, to amend regulatory language at 38 CFR 3.103(b)(1), 3.103(f), and 3.105(h)(2) to clearly reflect the statutory requirement that notice of a decision affecting the provision of benefits be sent not only to the claimant, but also to the claimant's representative. This amendment is made for the sake of clarity and the convenience of the user. Additionally, the reference to part 19, subpart B in § 3.103(f) has been amended to conform with final Board of Veterans Appeals regulations published on February 3, 1992 (57 FR 4088-4130).

Section 3.103. In § 3.103(b)(1), in the first sentence, after the word "Claimants" add the words "and their representatives". In § 3.103(f), in the first sentence, after the word "beneficiary" add the words "and his or her representative". In the parenthetical remarks after the last sentence, remove the words "part 19, subpart B" and add, in their place, the words "part 20".

Section 3.105. In § 3.105(h)(2), in the fifth sentence, after the word "beneficiary" add the words "and his or her representative".

REGULATORY AMENDMENT

3-92-7

Regulation Affected: 38 CFR 3.306

EFFECTIVE DATE OF REGULATION: The effective date is May 1, 1974.

Date Secretary Approved Regulation: October 6, 1992

Federal Register Citation: 57 FR 59296 (December 15, 1992)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

In a memorandum dated May 18, 1992, VA's Office of General Counsel pointed out that parts of 38 CFR 3.306 are outdated since they fail to reflect the changes in law which made the wartime aggravation criteria applicable to peacetime service after December 31, 1946. In 1966, Congress added section 1137 to title 38, United States Code, to apply the wartime presumption of sound condition upon entry onto active duty to all veterans having service after January 31, 1955 (See section 7 of Pub. L. 89-358, 80 Stat. 12, 27). In 1974, section 205 of the Veterans Disability Compensation and Survivor Benefits Act of 1974 (Pub. L. 93-295, 88 Stat. 180, 183), amended 38 U.S.C. 1137 to strike out the date January 31, 1955, and substitute December 31, 1946. As a result of this amendment, the provisions of 38 U.S.C. 1132, which provide a less generous presumption of soundness for veterans with peacetime service, do not apply to veterans with service after December 31, 1946. Rather, the same presumption of soundness for wartime veterans applies to these veterans. No conforming amendments were made to 38 CFR 3.306, however, and we are now correcting that oversight.

Section 3.306. In § 3.306, remove the heading for paragraph (b) and insert, in its place, the heading "Wartime service; peacetime service after December 31, 1946"; remove the heading for paragraph (c), and insert, in its place the heading "Peacetime service prior to December 7, 1941".

REGULATORY AMENDMENT

3-92-8

Regulations Affected: 38 CFR 3.261, 3.262, 3.263, 3.271, 3.272, 3.273, 3.275, 3.277, 3.660, and 3.661.

EFFECTIVE DATE OF REGULATION: January 14, 1993, except for provisions regarding exclusion of Agent Orange settlement payments, which are effective January 1, 1989; provisions regarding exclusion of the DOD annuity under Public Law 100-456, which are effective September 29, 1988; provisions regarding exclusion of payments for casualty loss under Public Law 100-687, which are effective November 18, 1988; and provisions concerning exclusion of restitution to individuals of Japanese ancestry, which are effective August 10, 1988.

Date Secretary Approved Regulation: October 30, 1992.

Federal Register Citation: 57 FR 59296-300 (December 15, 1992).

The purpose of the following comments on the changes included in these amendments of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

VA regulations regarding exclusions from income for pension and parents' DIC purposes have been amended to exclude income from the following four additional sources:

(1) An annuity, authorized by section 653, Public Law 100-456, paid by the Department of Defense to qualified surviving spouses of veterans who died before November 1, 1953, and who were entitled to retired or retainer pay on the date of death.

(2) Any payment received pursuant to the settlement in the case of In re Agent Orange Product Liability Litigation in the United States District Court for the Eastern District of New York (MDL No. 381). These payments are also excluded from consideration in estate computations. This provision of Public Law 101-201 is effective retroactively to January 1, 1989.

(3) All reimbursements for any casualty loss up to an amount equaling the greater of either the fair market value or reasonable replacement value of the property lost. This provision, which expands on the previous exclusion of proceeds from fire insurance, applies only to the improved pension and parents' DIC programs. For section 306 and old law pension, only the proceeds from fire insurance are excluded from income computation.

(4) Any payment made as restitution under Public Law 100-383, the Civil Liberties Act of 1988, to individuals of Japanese ancestry who were interned, evacuated, or relocated during the period December 7, 1941, through June 30, 1946, pursuant to any law, Executive order, Presidential proclamation, directive, or other official action respecting these individuals. This provision is effective August 10, 1988, and applies only to recipients of improved pension, parents' DIC, and parents' death compensation. (Public Law 102-371, the Civil Liberties Act Amendment of 1992, has now extended the exclusion to all VA programs. A later regulatory change, to be issued shortly, will implement this change.)

We also have provided definitions of recurring, nonrecurring, and irregular income, and have added consistency of procedure for computing these types of income in determining pension entitlement (38 CFR 3.271 and 3.273).

We have amended 38 CFR 3.271 to establish procedures in improved pension cases where dependents with income cannot be included on awards of benefits due to a lack of necessary evidence to confirm the relationship. This rule will preclude creation of overpayments when dependency is established retroactively.

We also have made technical amendments throughout to update terminology and make language gender neutral. The update in terminology will bring the text of the regulations into conformity with procedures and concepts introduced with the improved pension program and will serve to avoid confusion over references to periods of time as they relate to improved pension or previously existing pension programs.

Section 3.261. The table has been subdivided into parts (a), (b), and (c). Part (a) deals with income, and parts (b) and (c) deal with deductible expenses and corpus of estate, respectively. The language of the columnar headings has been modified to reflect gender-neutral language and to incorporate language specific to section 306 and old law pension. Item (14) has been modified to reflect exclusion for the DOD annuity under Public Law 100-456; item (28) has been modified to reflect exclusion for casualty loss under Public Law 100-687; and items (35) and (36) have been added to reflect exclusions of the Agent Orange settlement payments and restitution to individuals of Japanese ancestry, respectively.

Section 3.262. Paragraphs (g), (h), (j), and (k) through (p) have been amended to incorporate terminology specific to section 306 and old law pension and gender-neutral language. Authority citations have been revised or added as required. Paragraphs (r) through (u) have been added to implement the four new income exclusions under the appropriate programs.

Section 3.263. Paragraph (a) has been amended to incorporate gender-neutral language. Paragraphs (e) and (f) have been added to exclude from corpus of estate determinations under the appropriate programs Agent Orange settlement payments (par. (e)) and restitution to individuals of Japanese ancestry (par. (f)).

Section 3.271. Paragraphs (a)(1) through (a)(3) have been added to define recurring, irregular, and nonrecurring income, respectively, and to provide procedures for computing such income in determining entitlement to benefits. In paragraph (f), the pre-existing text has been redesignated as paragraph (f)(1), and paragraph (f)(2) has been added to establish procedures in improved pension cases where dependents with income cannot be included on awards of benefits due to a lack of necessary evidence to confirm the relationship.

Section 3.272. Paragraph (d) has been revised to provide exclusion from income for improved pension purposes of reimbursement of any kind due to any casualty loss. The excludable amount is not to exceed the greater of either the fair market value or the reasonable replacement value of the property lost. This provision expands the previous exclusion of proceeds from fire insurance. The term "casualty loss" is defined in this paragraph. Paragraphs (n) through (p) have been added to exclude from countable income under improved pension the survivor benefit annuity under Public Law 100-456, Agent Orange settlement payments, and restitution to individuals of Japanese ancestry.

Section 3.273. An introductory text to the section and a sentence at the end of paragraph (a) have been added to provide instructions concerning recomputation of the rate of improved pension due to income changes or changes in the maximum annual pension rate. Paragraph (d) has been added to instruct that rate computations involving recurring or irregular income are subject to the provisions of 38 CFR 3.660(a)(2). Minor language changes have been made in paragraphs (a), (b), and (c) for clarification and conformity with income computation practice in improved pension.

Section 3.275. Paragraphs (f) and (g) have been added to provide that for improved pension purposes, Agent Orange settlement payments and restitution to individuals of Japanese ancestry, respectively, are excluded from corpus of estate computations.

Section 3.277. The authority citation at the end of this section has been revised.

Section 3.660. The paragraph heading to paragraph (a)(2) has been changed to read "Effective dates," since this heading more accurately describes the paragraph contents. In paragraph (b) language changes have been made to replace references to "year" or "calendar year" with references to "12-month annualization period," so that the regulation conforms to all pension programs and parents' DIC. It is important to note that in paragraph (b)(1) an exception to these changes exists. The final phrase of the paragraph, "the same or the next calendar year.", is required by the statutory language in 38 U.S.C. 5110(h).

Section 3.661. The section heading has been changed to read "Eligibility Verification Reports." In paragraph (a)(1) and the heading of paragraph (b), the word "report" has replaced the word "questionnaire." In paragraph (b)(2) the term "Eligibility Verification Report" has replaced the term "income questionnaire." These changes conform to the current terminology for the periodic income and net worth reports required of pension and parents' DIC recipients. In paragraph (b)(1) the word "calendar" has been placed before the word "year" each time it appears. In paragraph (b)(2) the word "year" has been replaced by the words "12-month annualization period." These changes reflect the differences in the reporting requirements of the respective programs concerned.

REGULATORY AMENDMENT

3-92-9

Regulation affected: 38 CFR 3.7(x)

EFFECTIVE DATE OF REGULATION: The effective date for § 3.7(x)(24) and (26) is June 29, 1992, the effective date for § 3.7(x)(25) is July 16, 1992.

Date Secretary Approved Regulation: November 4, 1992

Federal Register Citation: 57 FR 60734-35 (December 22, 1992)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

The Secretary of the Air Force held under Pub. L. 95-202 that the service of members of the following groups is active duty for VA benefit purposes: U.S. Civilian Flight Crew and Aviation Ground Support Employees of Consolidated Vultree Aircraft Corporation (Consairway Division) Who Served Overseas as a Result of a Contract With the Air Transport Command During the Period December 14, 1941, through August 14, 1945; U.S. Civilian Flight Crew and Aviation Ground Support Employees of Pan American World Airways and Its Subsidiaries and Affiliates, Who Served Overseas as a Result of Pan American's Contract With the Air Transport Command and Naval Air Transport Service During the Period December 14, 1941 through August 14, 1945 and Honorably Discharged Members of the American Volunteer Guard, Eritrea Service Command During the Period June 21, 1942 to March 31, 1943.

Section 3.7 38 CFR 3.7(x)(24), (25) and (26) have been added to include service performed by members of U.S. Civilian Flight Crew and Aviation Ground Support Employees of Consolidated Vultree Aircraft Corporation (Consairway Division) Who Served Overseas as a Result of a Contract With the Air Transport Command, U.S. Civilian Flight Crew and Aviation Ground Support Employees of Pan American World Airways and Its Subsidiaries and Affiliates, Who Served Overseas as a Result of Pan American's Contract With the Air Transport Command and Naval Air Transport Service and Honorably Discharged Members of the American Volunteer Guard, Eritrea Service Command.

REGULATORY AMENDMENT

3-93-1

Regulation affected: 38 CFR 3.311b

EFFECTIVE DATE OF REGULATION: March 26, 1993

Date Secretary Approved Regulation: March 3, 1993

Federal Register Citation: 58 FR 16358-59 (March 26, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

The Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98-542, required VA to publish regulations for the adjudication of compensation claims in which disabilities or deaths of veterans are alleged to be the result of in-service exposure to ionizing radiation. It also required that the regulations be based on sound scientific and medical evidence. To assist VA in this effort, the law mandated the establishment of the Veterans Advisory Committee on Environmental Hazards (VACEH). On December 1, 1988, VA published in the Federal Register (53 FR 48551-2) a proposal to amend 38 CFR 3.311a(g) and 3.311b(h) to specify the other provisions under which service connection may be established for injury or disease claimed to be the result of exposure to ionizing radiation or to herbicides containing dioxin are those governing direct service connection, service connection by aggravation, or presumptive service connection. However, in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., 1989), the court concluded that VA incorrectly required that, in determining whether diseases would be service connected based on dioxin exposure, scientific evidence demonstrate a cause-and-effect relationship between the disease and exposure, rather than only a significant statistical association. In view of that decision, VA withdrew the proposed amendments of §§ 3.311a(g) and 3.311b(h) as they made reference to the causal relationship standard (See 54 FR 42802-03).

We have now amended § 3.311b(h) to clarify when service connection can be established based upon exposure to ionizing radiation. 38 CFR 3.311b(b)(2) is meant to be an exclusive list of radiogenic conditions for which service connection maybe granted under the provisions of Pub. L. 98-542. The previous wording of § 3.311b(h) might have been misinterpreted to mean that a veteran, rather than VA, may establish that a disease not included in § 3.311b(b)(2) resulted from exposureto ionizing radiation and should therefore be service-connected based on "sound scientific or medical evidence." Such an interpretation of § 3.311b(h) would be contrary to section 5(b)(2) of Pub. L. 98-542 which clearly stipulates that VA, after receiving the advice and recommendation of the VACEH, will publish regulations which list each disease for which it finds sound scientific or medical evidence of a connection to ionizing radiation.

Service connection may be established for any condition, regardless of cause, shown to have been incurred or aggravated during active service by applying the provisions of 38 CFR 3.303, 3.304, or 3.306. For certain conditions which manifest themselves within specified periods following a veteran's discharge from active military service, service connection may be established under the provisions of 38 CFR 3.307. Under each of these regulations, service connection is established not by what caused the condition, but by when it becomes manifest, i.e., service connection is established by the appearance of a combination of signs and symptoms sufficient to identify the condition during, or within a specified period following, the veteran's active military service. Service connection for disabilities or deaths alleged to be the result of exposure to ionizing radiation which first manifest themselves after the periods specified in § 3.307, however, must be established under the provisions of 38 CFR 3.311b unless service connection may be established either by applying the presumptions established by Congress in Pub. L. 100-321 (38 CFR 3.309(d)), or because the condition is proximately due to or the result of a service-connected disease or injury (38 CFR 3.310(a)).

By enacting Pub. L. 98-542, Congress clearly intended to establish an avenue for VA to compensate veterans for disabilities or deaths caused by ionizing radiation exposure, since existing statutes and regulations had proven inadequate for that purpose. Just as clearly, 38 CFR 3.311b(h), which implements the radiation provisions of Pub. L. 98-542, does not preclude awards of service connection under §§ 3.303, 3.304, 3.306, or 3.307, since it is applied only after service connection under those regulations has already been precluded because a condition manifested itself beyond the time frames they impose.

In a public meeting on August 22-23, 1990, the VACEH met in Washington, DC. At that meeting, the VACEH considered 11 papers relating to the health effects of exposure to ionizing radiation focusing primarily on the fifth report of the Committee on Biological Effects of Ionizing Radiation (BEIR V). Based on its review of this literature, the VACEH recommended that ovarian cancer be added to the list of diseases that VA will recognize as being radiogenic. The Secretary has accepted that recommendation and 38 CFR 3.311b(b)(2) has been amended to implement the Secretary's decision.

In a public meeting on January 30-31, 1991, the VACEH met in Washington, DC. At that meeting, the VACEH reviewed the relevant animal and human data and expressed the opinion that the data clearly implicate high dose irradiation as a causal factor in the pathogenesis of hyperparathyroidism and parathyroid tumors. Based on this review, the VACEH recommended that parathyroid adenoma be added to the list of diseases that VA will recognize as being radiogenic. The Secretary has accepted that recommendation and 38 CFR 3.311b(b)(2) has been amended to implement the Secretary's decision.

Section 3.311b. Paragraph (b)(2) has been amended to include ovarian cancer and parathyroid adenoma. Paragraph (h) has been amended to clarify when service connection can be established based upon exposure to ionizing radiation, and to provide that nothing in 38 CFR 3.311b will be construed to prevent the establishment of service connection for any disease or injury shown to have been incurred or aggravated during active service in accordance with §§ 3.304, 3.306, 3.307, or 3.309. However, service connection will not be established under § 3.311b, or any other section except for §§ 3.309(d) or 3.310(a), on the basis of exposure to ionizing radiation and the subsequent development of any disease not specified in § 3.311b(b)(2).

REGULATORY AMENDMENT

3-93-2

Regulation affected: 38 CFR 3.103(c)

EFFECTIVE DATE OF REGULATION: March 26, 1993

Date Secretary Approved Regulation: March 3, 1993

Federal Register Citation: 58 FR 16359-60 (March 26, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

If a claimant requests a hearing on an issue pending before VBA, the previous wording of 38 CFR 3.103(c)(1) provided that the hearing be held "in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions." That wording did not allow VA sufficient flexibility to provide hearings at alternative sites, such as other VA facilities or federal buildings at which suitable hearing facilities are available, even though such an option would allow VBA to better serve its claimants.

This amendment will ease this restriction and allow VBA managers the latitude to authorize hearings at remote sites, solely at VA option and subject to available resources. Additionally, the reference to § 19.174 that appears in the first sentence of § 3.103(c)(1) has been amended to conform with final Board of Veterans Appeals regulations published on February 3, 1992 (See 57 FR 4088-4130).

Section 3.103. In § 3.103(c)(1), the first sentence, remove the numbers "19.174", and add, in their place, the numbers "20.1304". In § 3.103(c)(1), the second sentence, after the words "claimant's home having adjudicative functions," add the words "or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available." Remove the words "and will provide VA personnel" and add, in their place, the words "VA will provide personnel".

REGULATORY AMENDMENT

3-93-3

Regulation affected: 38 CFR 3.5(e)

EFFECTIVE DATE OF REGULATION: January 1, 1993

Date Secretary Approved Regulation: February 12, 1993

Federal Register Citation: 58 FR 25561-62 (April 27, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Under 38 U.S.C. 1310, VA pays DIC to surviving spouses of veterans who died from disease or injury incurred or aggravated during active military service. Prior to January 1, 1993, 38 U.S.C. 1311(a) provided that the surviving spouse's basic DIC rate be determined by the deceased veteran's military pay grade. The Dependency and Indemnity Compensation Reform Act of 1992, Section 102 of the Veterans' Benefits Act of 1992, Pub. L. 102-568, amended 38 U.S.C. 1311(a) to provide surviving spouses eligible for DIC with a basic monthly rate of $750, without regard to the deceased veteran's military pay grade. This basic rate is increased by $165 monthly in the case of a veteran who at the time of death was receiving or entitled to receive compensation for a service-connected disability evaluated as totally disabling for a continuous period of at least eight years immediately preceding death. In determining the eight year period, only periods during which the veteran was married to the surviving spouse will be considered.

Under the statute, beneficiaries have no option to elect DIC benefits as provided prior to the enactment of Pub. L. 102-568. Surviving spouses of veterans who die before January 1, 1993, will receive DIC either based upon the veteran's military pay grade or under the new formula, whichever provides the greater benefit. Surviving spouses of veterans who die on or after January 1, 1993, will receive DIC only under the formula provided by Pub. L. 102-568.

Pub. L. 102-568 also amended 38 U.S.C. 1311(b) to increase the additional amount of DIC payable to a surviving spouse with dependent children of the deceased veteran to $100 monthly for each dependent child beginning January 1, 1993; to $150 monthly during Fiscal Year 1994; and to $200 monthly thereafter.

Section 3.5. 38 CFR 3.5(e)(1) has been amended to reflect the DIC rate for a surviving spouse when death occurred on or after January 1, 1993. 38 CFR 3.5(e)(2) has been amended to reflect the DIC rate for a surviving spouse when death occurred prior to January 1, 1993.

REGULATORY AMENDMENT

3-93-4

Regulation affected: 38 CFR 3.201(a)

EFFECTIVE DATE OF REGULATION: May 27, 1993

Date Secretary Approved Regulation: March 3, 1993

Federal Register Citation: 58 FR 25562 (April 27, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 601 of the Servicemen's and Veterans' Survivor Benefits Act, Pub. L. No. 881, 70 STAT. 857, 886 (1956) added 38 U.S.C. 5105 which authorized the Administrator of Veterans Affairs (now the Secretary of Veterans Affairs) and the Secretary of Health, Education, and Welfare (now the Secretary of Health and Human Services (HHS)) to jointly prescribe forms for use by survivors of members and former members of the uniformed services in filing applications for dependency and indemnity compensation (DIC) from VA and benefits under title II of the Social Security Act. That statute also stipulated that an application on such form filed with either VA or the Secretary of HHS would be deemed an application for both benefits, and it provided for transmission of applications and supporting documentation between VA and HHS. The purposes of section 601 were to obviate the necessity for a claimant to file more than one basic application for benefits under the Social Security Act and the DIC program and to avoid, to the maximum feasible extent, the necessity for a claimant to file any particular item of documentary evidence substantiating a claim more than once. VA published regulations at 38 CFR 3.201(a) to put this statutory directive into effect.

The central purpose of § 3.201(a) is to spare claimants the inconvenience of filing duplicate claims or furnishing duplicate evidence. It also establishes the date that the application or evidence is considered to have been received by VA (See 38 CFR 3.156(a), 3.158(a), and 3.400(q)(1)(i)). It is not, however, intended to require that evidence before the SSA be treated as if it were part of the record before VA, or to require that VA affirmatively seek such evidence from SSA in the absence of a request from the claimant, or to apply to claims for any VA benefit other than DIC.

Section 3.201. 38 CFR 3.201(a) has been amended to provide that a claimant for DIC may elect to furnish VA in support of that claim copies of evidence which was previously furnished to the Social Security Administration or to have the Department of Veterans Affairs obtain such evidence from the Social Security Administration. For the purpose of determining the earliest effective date for payment of dependency and indemnity compensation, such evidence will be deemed to have been received by the Department of Veterans Affairs on the date it was received by the Social Security Administration.

REGULATORY AMENDMENT

3-93-5

Regulation affected: 38 CFR 3.272(l)

EFFECTIVE DATE OF REGULATION: November 4, 1992

Date Secretary Approved Regulation: February 12, 1993

Federal Register Citation: 58 FR 25563 (April 27, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

38 U.S.C. 1718 previously provided that payments as a result of participation in a VA therapeutic or rehabilitation activity be considered a donation from a public or private relief or welfare organization and not countable as income for pension purposes. Section 401 of the Veterans' Health Care Act of 1992, Pub. L. 102-585, amended 38 U.S.C. 1718 to consider payments to a veteran as a result of participation in a program of rehabilitative services provided as part of the care furnished by a State home and which is approved by VA as conforming to standards for activities under 38 U.S.C. 1718 to be a donation from a public or private relief or welfare organization, and, therefore, excluded from countable income under the Improved Pension program.

Section 3.272. 38 CFR 3.272(l) has been amended to exclude as income for pension purposes payments to a veteran as a result of participation in a program of rehabilitative services provided as part of the care furnished by a State home and which is approved by VA as conforming to standards for activities under 38 U.S.C. 1718.

REGULATORY AMENDMENT

3-93-6

Regulation affected: 38 CFR 3.309

EFFECTIVE DATE OF REGULATION: October 1, 1992

Date Secretary Approved Regulation: February 11, 1993

Federal Register Citation: 58 FR 25563-64 (April 27, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 2 of the Veterans' Radiation Exposure Amendments of 1992, Pub. L. 102-578, amended 38 U.S.C. 1112(c) to repeal the requirement that, to be presumed service connected, specified diseases of veterans who participated in a radiation-risk activity become at least 10 percent disabling within 40 years after the veterans' last exposure to radiation. Pub. L. 102-578 also added cancer of the salivary gland and cancer of the urinary tract to the list of conditions for which presumptive service connection is authorized for veterans who participated in a radiation-risk activity.

Section 3.309. In § 3.309(d)(1), remove the words "to a degree of 10 percent or more within the presumptive period specified in paragraph (d)(3) of this section". In § 3.309(d)(2), paragraphs (xiv) and (xv) have been added to include cancer of the salivary gland and cancer of the urinary tract. In § 3.309(d), remove paragraph (3) and redesignate paragraph (4) as paragraph (3).

REGULATORY AMENDMENT

3-93-7

Regulation affected: 38 CFR 3.500(x) and 3.715

EFFECTIVE DATE OF REGULATION: October 15, 1990

Date Secretary Approved Regulation: February 4, 1993

Federal Register Citation: 58 FR 25564-65 (April 27, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

The Radiation Exposure Compensation Act of 1990 (RECA), Pub. L. 101-426, 104 Stat. 920, as amended by Pub. L. 101-510, section 3139, 104 Stat. 1835 (42 U.S.C. 2210 note) authorized the Attorney General of the United States to establish procedures for making payments as restitution to all eligible individuals, who may have contracted one of a specified group of radiation-related diseases as a result of the federal government's atmospheric nuclear testing program and to certain of their survivors. RECA authorized the Attorney General to make payments to a limited class of individuals with radiation-related diseases who had been employed during a specified period in uranium mines in Colorado, Utah, Arizona, Wyoming or New Mexico, or who had been present during designated periods at, or in, certain specified areas downwind of, the Nevada Test Site, the Pacific Proving Grounds, and the Trinity Test Site at Alamogordo, New Mexico. The Department of Justice published final regulations implementing RECA in the Federal Register of April 10, 1992 (57 FR 12428-61).

RECA has clear implications for VA beneficiaries receiving compensation or DIC based on disability or death resulting from a radiogenic disease. Section 6(e) of RECA provides that when an individual accepts a RECA payment, that payment represents full satisfaction of all claims of or on behalf of that individual against the United States based upon a condition that arises out of exposure to radiation as a result of onsite participation in a test involving the atmospheric detonation of a nuclear device. It is clear that under section 6(e) a veteran who accepts a RECA payment based on a radiogenic condition which developed after he or she participated onsite in an atmospheric test, is thereafter barred from receiving disability compensation under chapter 11 of title 38, United States Code, for the same condition. Similarly, a survivor who accepts a RECA payment based on the death of a veteran resulting from a radiogenic condition would thereafter be disqualified from receiving DIC based on death resulting from the same condition.

Section 3.500. 38 CFR 3.500(x) has been added to provide that the termination date for an award of compensation or DIC is the last day of the month preceding the month in which payment under the Radiation Exposure Compensation Act of 1990 is issued.

Section 3.715. 38 CFR 3.715 has been added to provide that payment to any individual under the provisions of the Radiation Exposure Compensation Act of 1990 (Pub. L. 101-426 as amended by Pub. L. 101-510) based upon disability or death resulting from a specific disease shall bar payment, or further payment, of compensation or DIC to or on behalf of that individual based upon disability or death resulting from the same disease.

REGULATORY AMENDMENT

3-93-8

Regulation affected: 38 CFR 3.307(a) and 3.309(e)

EFFECTIVE DATE OF REGULATION: February 6, 1991

Date Secretary Approved Regulation: March 17, 1993

Federal Register Citation: 58 FR 29107-09 (May 19, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4, added 38 U.S.C. 1116 to establish a presumption of service connection for veterans with service in the Republic of Vietnam during the Vietnam era who subsequently develop, to a degree of 10 percent or more, non-Hodgkin's lymphoma, soft-tissue sarcoma (subject to specified statutory exceptions), and chloracne or other acneform disease consistent with chloracne, even though there is no record of that disease during military service. Qualifying skin conditions must have become manifest to a degree of 10 percent or more within one year of the last date of service in the Republic of Vietnam during the Vietnam era.

The term "soft-tissue sarcoma" is an imprecise term and there is no standard list of conditions which is universally accepted within the medical community as a definitive listing of "soft-tissue sarcomas". Although Congress has specifically excluded osteosarcoma, chondrosarcoma, Kaposi's sarcoma, and mesothelioma by statute, they have offered no specific guidance as to which other tumors they consider to be soft-tissue sarcomas.

VA has previously addressed the issue of what the term soft-tissue sarcoma encompasses for the purpose of amending 38 CFR 3.311a, to implement a determination by the Secretary of Veterans Affairs in accordance with the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98-542. Pub. L. 98-542 provided that the Secretary, after receiving the advice of the Veterans Advisory Committee on Environmental Hazards (VACEH), will make a determination based upon "sound medical and scientific evidence", with respect to whether service connection will be granted for a particular disease. Based upon advice from VACEH and the Veterans Health Administration (VHA), the Secretary concluded that soft-tissue sarcomas should be classified by tumor type rather than tumor location and further, that in order to be recognized as "soft-tissue" sarcomas by VA, tumors must be malignant and arise from tissue of mesenchymal origin, including muscle, fat, blood or lymph vessels, or connective tissue (but not cartilage or bone), but that tumors of infancy or childhood, and those having a strong, known causal association with a specific etiology should not be included. The list of tumors which meet those criteria was published as part of the revision to 38 CFR 3.311a(c) (See the Federal Register of October 15, 1991 (56 FR 51651-3)).

Those same criteria are consistent with the statutory language of Pub. L. 102-4 to the extent that when they are applied, osteosarcoma, chondrosarcoma, Kaposi's sarcoma, and mesothelioma are not considered soft-tissue sarcomas for VA purposes. However, since it provides presumptive service connection for "each" soft-tissue sarcoma becoming manifest to a degree of 10 percent or more, the statutory language of Pub. L. 102-4 clearly encompasses a broader category of tumors than that listed in 38 CFR 3.311a by not excluding tumors of infancy and childhood.

To implement these provisions of Pub. L. 102-4, we have cited the list of tumors that appears at 38 CFR 3.311a(c)(2) and have augmented it with the following tumors: Extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. These additional soft-tissue sarcomas are generally considered tumors of infancy and childhood which rarely, if ever, occur initially in an individual old enough to have been accepted for military service. They will be included in this regulation, however, in order to satisfy the requirements established by the statutory language of Pub. L. 102-4.

Section 3.307. The heading has been revised to include diseases associated with service in the Republic of Vietnam. A new paragraph (a)(6) has been added to provide presumptive service connection the diseases listed in § 3.309(e) which become manifest to a degree of 10 percent or more at any time after service in Vietnam during the Vietnam era, except that chloracne or another acneform disease consistent with chloracne must become manifest to a degree of 10 percent or more within a year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. In § 3.307(a), the first sentence, remove the words "or prisoner of war related disease", and add, in their place, the words ", prisoner of war related disease, or a disease associated with service in the Republic of Vietnam". In § 3.307(a)(1), after the words "§ 3.309(c)" add the words "and (e)".

Section 3.309. New paragraph (e) has been added to provide that, if a veteran, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, the following diseases will be service-connected if the requirements of § 3.307(a)(6) are satisfied even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied:

Chloracne

Non-Hodgkin's lymphoma

Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma)

NOTE: The term "soft-tissue sarcoma" includes those tumors listed at § 3.311a(c)(2). For the purposes of this section only, the following tumors of infancy and childhood, although rarely if ever occurring in an individual old enough to have been accepted for military service, will also be included:

Extraskeletal Ewing's sarcoma

Congenital and infantile fibrosarcoma

Malignant ganglioneuroma

REGULATORY AMENDMENT

3-93-9

Regulation affected: 38 CFR 3.304(f)

EFFECTIVE DATE OF REGULATION: May 19, 1993

Date Secretary Approved Regulation: March 18, 1993

Federal Register Citation: 58 FR 29109-10 (May 19, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

In a precedent opinion dated March 17, 1992 (O.G.C. Prec. 7-92), VA's General Counsel held that certain provisions of the Adjudication Procedure Manual, M21-1, Part I, regarding the development of evidence in claims involving PTSD constitute substantive rules which were not promulgated in accordance with the rulemaking procedures prescribed by 5 U.S.C. 552(a)(1), 553 and 38 CFR 1.12.

PTSD is an anxiety disorder resulting from a traumatic event outside the range of usual human experience which is characterized by recurrent episodes of reexperiencing the traumatic event, numbing of emotional responsiveness, and increased restlessness. In order to establish service connection for PTSD, VA must have medical evidence supporting a clear diagnosis of the condition, credible evidence that the claimed inservice stressor actually occurred, and medical evidence establishing a link between the current symptomatology and the claimed inservice stressor.

Under the provisions of 38 U.S.C. 501(a), the Secretary of Veterans Affairs has authority to prescribe regulations with respect to the nature and extent of proof and evidence required in order to establish entitlement to benefits. The Secretary has determined that for cases of PTSD certain types of evidence are sufficient to substantiate the occurrence of the claimed inservice stressor under specific circumstances where events can never be fully documented. Combat, for example, is inherently life-threatening, and the brutal and horrific events associated with active armed combat are indisputably the types of stressful events that could produce PTSD. The chaotic circumstances of combat, however, preclude the maintenance of detailed records. Consequently, the Secretary has determined that when service department records indicate that the veteran engaged in combat or was awarded a combat citation and the claimed stressor is related to the combat experience, further development to document the occurrence of the claimed stressor is unnecessary.

Similarly, when a veteran is considered a former prisoner-of-war under the provisions of 38 CFR 3.1(y), the Secretary has determined that no additional evidence is necessary to verify the occurrence of an inservice stressor. Typically, former prisoners-of-war were forcibly detained or interned under circumstances that included physical or psychological hardships or abuse, malnutrition, and unsanitary conditions. The prolonged and chronic stress of exposure to such conditions plus the uncertainty of not knowing how long one must endure them are types of overwhelming stress that could certainly produce PTSD.

When VA has the types of evidence discussed above, additional development would only serve to delay the authorization of benefits to which the claimants are entitled.

Section 3.304. A new paragraph (f) has been added to provide that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Additionally, if the claimed stressor is related to the claimant having been a prisoner-of-war, prisoner-of-war experience which satisfies the requirements of § 3.1(y) will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor.

REGULATORY AMENDMENT

3-93-10

Regulation affected: 38 CFR 3.55, 3.115, 3.215, 3.341(c), 3.342(c), 3.343(c), 3.502(f) and 3.551(i)

EFFECTIVE DATE OF REGULATION: The amendments to §§ 3.502 and 3.551 are effective October 1, 1992. The remaining amendments are effective October 29, 1992.

Date Secretary Approved Regulation: April 19, 1993

Federal Register Citation: 58 FR 32443-45 (June 10, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 8004 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, rescinded VA's authority to reinstate the benefits eligibility of remarried surviving spouses when the marital relationship terminates. These provisions applied to claims filed after October 31, 1990. Section 502 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. 102-86, stipulated that the rescission of VA's authority to reinstate benefits eligibility does not apply to any individual who on October 31, 1990, was a surviving spouse within the meaning of title 38, United States Code, unless after that date that individual marries. Section 103 of the Veterans' Benefits Act of 1992, Pub. L. 102-568, further stipulated that the rescission of VA's authority to restore benefits eligibility does not apply to any case in which a legal proceeding to terminate the disqualifying marital relationship was begun before November 1, 1990, if that proceeding directly resulted in the termination of the disqualifying marital relationship. Since the recent amendment applies to surviving spouses but not to children, we are revising 38 CFR 3.55 to implement this revised statutory provision and reorganizing it into separate paragraphs for surviving spouses and children. We have also revised the heading to § 3.55 to read "Reinstatement of benefits eligibility based upon terminated marital relationships" which more accurately reflects the content of the regulation than the previous heading, "Terminated marital relationships." Additionally, we have made a revision to § 3.215 so that this section resembles § 3.55 in terminology and structure.

In 38 U.S.C. 1163, Congress established a temporary program for trial-work periods and vocational rehabilitation services to certain veterans who have service-connected disabilities not rated as totally disabling but who have been awarded a rating of total disability by reason of individual unemployability. Under this temporary program, such a veteran who starts a substantially gainful occupation may not have his or her disability rating reduced on the basis of having obtained and continued that employment unless he or she maintains that employment for 12 consecutive months. Section 401 of Pub. L. 102-568 makes the program permanent and we have amended 38 CFR 3.341(c) and 3.343(c)(2) to reflect that change.

38 U.S.C. 1524 provides for a temporary vocational training program for veterans under the age of 45 who are awarded pension during the program period. Section 402 of Pub. L. 102-568 extends the program until December 31, 1995 and eliminates the statutory requirement that VA suspend benefits if a veteran fails to participate in the program. We have amended 38 CFR 3.342(c)(1) and (2) to reflect the revised ending date and the elimination of the requirement to suspend benefits for failure to participate in the program.

Section 8003 of Pub. L. 101-508 required VA to reduce the pension benefits of any veteran having neither spouse nor child who receives Medicaid-covered nursing home care to $90 per month. These statutory provisions expired September 30, 1992. Section 601 of Pub. L. 102-568 extends this requirement until September 30, 1997, and requires an identical reduction in death pension payments to surviving spouses having no children who receive Medicaid-covered nursing home care. We have amended 38 CFR 3.502 and 3.551(i) to reflect these statutory changes. The dates for reduction of death pension benefits under these circumstances have been added at 38 CFR 3.502. The language in this paragraph, except for benefit specific references, is identical to the language that appears at § 3.501(i)(6) regarding the dates that disability pension will be reduced under the same circumstances. Inclusion in § 3.502 of a reference to a reduction effective the last day of the month following 60 days after issuance of a prereduction notice required under § 3.103(b) reflects the fact that a surviving spouse may not generally be held liable for any overpayment created by operation of the statute. This action is not intended to imply that provision of a 60-day prereduction notice period creates entitlement to benefits for that period.

The Right to Financial Privacy Act of 1978, codified at 12 U.S.C. 3401 through 3422, generally prohibits federal agencies from gaining access to or obtaining copies of information contained in a financial institution's customer records. Section 603 of Pub. L. 102-568 amends 12 U.S.C. 3413 to specifically permit financial institutions to disclose to VA the names and addresses of customers where the disclosure is necessary for the proper administration of benefit programs under laws administered by VA and the information will be used solely for that purpose. The Secretary of Veterans Affairs may request such information only upon making a determination that it is necessary for the administration of laws administered by VA and that it cannot be obtained by a reasonable search of VA records and information. We have added a new section, § 3.115, to 38 CFR Part 3 in order to implement this new statutory provision.

Section 3.55. Since this amendment applies to surviving spouses but not to children, we are revising 38 CFR 3.55 to implement this revised statutory provision and reorganizing it into separate paragraphs for surviving spouses and children.

Section 3.115. This section has been added to specifically permit financial institutions to disclose to VA the names and addresses of customers where the disclosure is necessary for the proper administration of benefit programs under laws administered by VA and the information will be used solely for that purpose.

Section 3.215. In § 3.215, the first sentence, remove the words "With respect to marriages terminated on" and insert, in their place, the word "On". In § 3.215, the first sentence, remove the words "but prior to November 1, 1990,". In § 3.215, the first sentence, remove the words "unless the same or similar conduct or relationship resumes after October 31, 1990" and insert, in their place, the words "if the relationship terminated prior to November 1, 1990".

Section 3.341. In § 3.341(c), the heading, remove the words "Temporary program", and insert, in their place, the word "Program". In § 3.341(c), the text, remove the words "on February 1, 1985 and ending on January 31, 1992," and insert, in their place, the words "after January 31, 1985,".

Section 3.342. In § 3.342(c)(1), the first sentence, remove the words "January 31, 1992," and insert, in their place, the words "December 31, 1995,". In § 3.342(c)(1), the first sentence, remove the words "as required by § 21.6050" and insert, in their place, the words "as provided in § 21.6050". In § 3.342(c)(1), remove the second sentence. In § 3.342, remove paragraph (c)(2) and redesignate paragraph (c)(3) as the new paragraph (c)(2).

Section 3.343. In § 3.343(c)(2), remove the words "on February 1, 1985, and ending on January 31, 1992," and insert, in their place, the words "after January 1, 1985,".

Section 3.502. This new section has been added to provide for reduction in death pension payments to surviving spouses having no children who receive Medicaid-covered nursing home care.

Section 3.551. In § 3.551(i), in the heading, after the word "veterans" add the words "and surviving spouses"; in the first sentence, remove the words "September 30, 1992," and insert, in their place, the words "September 30, 1997,"; in the first sentence, after the words "nor child" add the words ", or a surviving spouse having no child,"; in the first sentence, after the words "no pension" insert the words "or death pension"; in the first sentence, after the words "to or for the veteran" add the words "or the surviving spouse"; in the second sentence, after the words "A veteran" and "by the veteran" add the words "or surviving spouse".

REGULATORY AMENDMENT

3-93-11

Regulations Affected: 38 CFR 3.261(a), 3.262(u), and 3.263(f).

EFFECTIVE DATE OF REGULATIONS: These amendments are effective August 10, 1988, the date authorized by Public Law 102-371.

Date Secretary Approved Regulations: February 5, 1993

Federal Register Citation: 58 FR 33766-67 (June 21, 1993)

The purpose of the following comments on the changes included in these amendments of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

Title I of Public Law 100-383, the Civil Liberties Act of 1988, provided redress in the amount of $20,000.00 to certain individuals of Japanese ancestry who were interned or relocated by the Federal government during WWII. The bill expressly provided that these payments shall not be included as income or resources for determining eligibility to benefits described in 31 U.S.C. 3803(c)(2)(C). An opinion of VA's General Counsel (O.G.C. Prec. 3-92) held that these payments are not countable as income or for net worth determinations for the purposes of improved pension and parents' DIC, which are found in those chapters of title 38 U.S.C. referenced by the cited section of title 31. The opinion further stated that these payments were countable as income and net worth under 306 pension and old law pension, because these benefits are no longer in force under title 38, but under the savings provision (section 306) of Public Law 95-588. In a previous regulatory amendment we amended 38 CFR §§ 3.261, 3.263, 3.262, 3.272, and 3.275 to implement Public Law 100-383 and the opinion of the General Counsel.

On September 27, 1992, the President signed Public Law 102-371, the Civil Liberties Act Amendments of 1992. This law amended Public Law 100-383 by extending the income exemption of the Japanese-American restitution payments to include exclusion from countable income or in determining net worth for any program administered by VA, effective August 10, 1988, the date of the original law. Our current amendments implement these provisions of Public Law 102-371.

Sections 3.261 and 3.262. Paragraphs 3.261(a)(36) and 3.262(u) have been revised to show that the Japanese-American restitution payments are not countable income for section 306 and old law pension.

Section 3.263. Paragraph(f) has been revised to show that the Japanese-American restitution payments are excluded from net worth computations under section 306 pension.

REGULATORY AMENDMENT

3-93-12

Regulation affected: 38 CFR 3.558(c)

EFFECTIVE DATE OF REGULATION: March 11, 1993

Date Secretary Approved Regulation: May 25, 1993

Federal Register Citation: 58 FR 34224-25 (June 24, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

38 U.S.C. 5503(b)(1)(A) precludes the payment of compensation when a veteran is without spouse or child; is receiving hospital treatment, institutional care, or domiciliary care without charge or otherwise from the U.S. or any political subdivision of the U.S.; is rated incompetent by the Secretary in accordance with regulations; and his or her estate (excluding, generally, the value of his or her home) exceeds $1,500. While subparagraph (A) requires suspension of compensation when all four prerequisites exist, if the veteran is held competent by VA for a period of six months, subparagraph (B) imposes the additional requirement that the suspended benefits be paid in a lump sum.

The Secretary has prescribed at 38 CFR 3.558(c)(2) an additional requirement that a veteran rated competent for six months or longer and thereafter re-rated as incompetent must have a spouse or child in order to be eligible for the lump-sum payment. In Felton v. Brown, U.S. Vet. App. No. 90-965, COVA held that the requirement found at 38 CFR 3.558(c)(2) is an unauthorized limitation on the scope of 38 U.S.C. 5503, and is, therefore, neither "appropriate to carry out" nor "consistent with" the law under 38 U.S.C. 501(a). We have amended § 3.558 to delete paragraph (c)(2) effective March 11, 1993, the date of the COVA decision.

Additionally, we have amended the remaining text of § 3.558 to clarify that the sole criterion for determining whether a veteran is entitled to a lump-sum payment is that he or she must have been subsequently rated competent by VA for a period of not less than six months. VA believes that this interpretation of the statute is consistent with the COVA decision in Felton v. Brown, which held that 38 U.S.C. 5503(b)(1)(B) clearly mandates a lump-sum payment after the expiration of a six-month period following competency.

Section 3.558. Paragraph (c) has been revised to provide that any amount not paid because of the provisions of § 3.557(b),and any amount of compensation or retirement pay withheld pursuant to the provisions of § 3.551(b) (and/or predecessor regulatory provisions) as it was constituted prior to August 1, 1972, and not previously paid because of the provisions of § 3.557(b), will be awarded to the veteran if he or she is subsequently rated competent by VA for a period of not less than six months.

REGULATORY AMENDMENT

3-93-13

Regulation affected: 38 CFR 3.812(f)

EFFECTIVE DATE OF REGULATION: June 28, 1993

Date Secretary Approved Regulation: March 17, 1993

Federal Register Citation: 58 FR 34524-25 (June 28, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

The Omnibus Budget Reconciliation Act of 1981 amended title 42, United States Code, to discontinue payment of the social security mother's and child's insurance benefits at the point at which the child reached age sixteen. Previously, such benefits had terminated when the child reached age eighteen. Section 156 of Pub. L. 97-377 restored such benefits for surviving spouses and children of individuals who died on active duty prior to August 13, 1981, or died as a result of service-connected disability incurred or aggravated prior to that date. This law, which established the Restored Entitlement Program for Survivors (REPS), provided that payment of the mother's and child's benefits would be in the amount, if any, that beneficiaries would have received under section 202 of the Social Security Act (codified at 42 U.S.C. 402) if the child were under sixteen years of age. Section 202(j) of the Social Security Act provides that the mother's (or father's) and child's benefits may be paid from the beginning of the first month in which eligibility arose, where application for benefits is filed prior to the end of the sixth month immediately succeeding that month.

VA issued an implementing regulation, codified at 38 CFR 3.812(f)(2), providing that benefits could be paid from the first day of the month in which the claimant first became eligible, if application was filed within eleven months following that month. However, in view of the sua sponte ruling by the Court of Veterans Appeals in Cole v. Derwinski, U.S. Vet. App. No. 89-30 (judgment entered July 27, 1992), invalidating this regulation, VA reviewed the statutory authority for payment of benefits under this program. As a result of this review, we now believe that the six-month application period for payment of benefits from the month in which eligibility arose, provided by the social security statutes, must be applied under the REPS program. This amendment corrects the regulation in this regard.

Since the provisions of the Social Security Act requires that application be filed within six months after the month in which eligibility arose in order for payment to be made from that month, there was no authority under section 156 to make such payment to those persons who applied after six months but before eleven months from the month in which eligibility arose. However, persons who have been paid benefits pursuant to 38 CFR 3.812(f)(2) from the month in which eligibility arose, based on applications filed within eleven months, but not within the six months, of that month, will be permitted to keep those benefits since payment was based on administrative error and, under 38 U.S.C. 5112(b)(10) and 38 CFR 3.500(b)(2), the effective date for reduction of benefits in such situations is the date of last payment. We realize that there may be persons who first became eligible for REPS benefits within eleven months prior to the month in which this amendment became effective but who did not or will not apply for benefits within the required six-month period because of reliance upon the eleven-month filing period specified in the former regulation. This amendment establishes a policy under which equitable relief will be provided to such persons under 38 U.S.C. 503(a), if they can establish to the satisfaction of the Secretary that they did not make application within the required six-month period due to reliance on the former regulation. Section 503(a) authorizes the Secretary to provide equitable relief to persons denied benefits by reason of administrative error on the part of the Federal Government.

Section 3.812. In § 3.812, remove the words "11 months" in paragraph (f)(2) and add, in their place, the words "6 months"; redesignate paragraph (f)(4) as paragraph (f)(5), and add a new paragraph (f)(4) to provide equitable relief for certain persons who relied upon the prior regulatory provision.

REGULATORY AMENDMENT

3-93-14

Regulations Affected: 38 CFR 3.353

EFFECTIVE DATE OF REGULATION: This amendment is effective August 13, 1993.

Date Secretary Approved Regulation: May 20, 1993

Federal Register Citation: 58 FR 37856 (July 14, 1993)

The purpose of the following comments on the changes included in this amendment of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

The definition of a mentally incompetent person for VA purposes is one who, because of injury or disease, lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation (38 CFR 3.353(a)). This definition represents long-standing VA policy. An inconsistency existed in the language of § 3.353(d), however, which required a presumption in favor of competency in situations where doubt arises as to whether a beneficiary is capable of administering his or her funds (emphasis added).

Section 3.353(d) was designed to avoid appointing a fiduciary except in a situation where it is clearly in a beneficiary's best interest to do so because of mental incompetency. Since ratings of incompetency are based on the definition in § 3.353(a) and can result in appointment of a fiduciary, to limit consideration under § 3.353(d) only to the administration of funds would constitute internal inconsistency within the regulation and could lead to discrepancies in its application in individual cases. The regulatory history, in fact, shows that the language of § 3.353(d) predates the definition of § 3.353(a) and was never amended to conform with it. We, therefore, have amended § 3.353(d) to add a provision regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, to change "administering" funds to "disbursement" of funds, and to add the phrase "without limitation" to the provision concerning disbursement of funds. We also have amended § 3.353(d) to clarify that by "doubt" whether a beneficiary is competent we mean "reasonable doubt." This change accords with VA's doctrine of reasonable doubt as defined in § 3.102 and represents in any event the intent of § 3.353(d) in this regard.

Section 3.353. Paragraph (d) has been amended to add a provision regarding a beneficiary's mental capacity to contract or manage his or her own affairs, to change "administering" funds to "disbursement" of funds, to add the phrase "without limitation" to the provision concerning disbursement of funds, and to clarify that by "doubt" whether a beneficiary is competent "reasonable doubt" is meant.

REGULATORY AMENDMENT

3-93-15

Regulations Affected: 38 CFR 3.203(c) and 3.205(a)(1).

EFFECTIVE DATE OF REGULATIONS: July 14, 1993

Date Secretary Approved Regulations: February 25, 1993

Federal Register Citation: 58 FR 37856-57 (July 14, 1993)

The purpose of the following comments on the changes included in these amendments of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

Prior to October 28, 1980, VA accepted photo copies of discharge documents as proof of military service unless there was some reason to question the genuineness of the documents. However, 38 CFR 3.203 was amended to provide that VA may accept a copy of an original discharge document as proof of military service, but only if the copy was issued by the appropriate service department or by a public custodian of records who certifies that it is a true and exact copy of the document in his or her custody. If this type of evidence is not submitted, VA requests verification of military service from the appropriate service department.

No general review of previously allowed claims was conducted when § 3.203 was amended, so veterans who had previously been awarded compensation or pension based upon uncertified copies of discharge documents continue to receive those benefits. When one of those veterans dies, however, VA requests evidence of military service which satisfies the more stringent current requirements before authorizing payment of the one-time, nonservice-connected burial benefit. The maximum amount of the one-time burial benefit is $450 ($300 burial allowance plus $150 plot allowance), and it is payable only when the veteran was entitled to receive compensation or pension as of the date of death, or died in a VA hospital. It has been our experience that we are ultimately able to verify the service of virtually all of these veterans. We have therefore determined that the delay in authorizing payment which verification entails and the resulting distress to survivors are not warranted, and that evidence relied upon to authorize payment of compensation or pension is sufficient to authorize payment of the one-time, nonservice-connected burial benefit.

Prior to June 14, 1982, VA accepted the veteran's certified statement, under most circumstances, as proof of marriage; however, many claimants also submitted uncertified copies of the public record of marriage to support their claims. In 1982 VA began to require more than a certified statement as proof of marriage, with certified copies of the public or church record of marriage being the preferred type of evidence. No general review of claims in which the additional allowance for a spouse had been authorized was conducted, however. When a veteran who receives compensation or pension benefits dies, claims for death pension or dependency and indemnity compensation may be delayed while VA requests currently acceptable proof of marriage. This is true even though VA recognized the surviving spouse as a dependent while the veteran was alive and even though VA has on record an uncertified copy of the public record of marriage supporting a certified statement from the deceased veteran as well as the surviving spouse's certified statement on the application for death benefits. To require a certified marriage document under these circumstances results in unwarranted expense, inconvenience and loss of time to surviving spouses at a very difficult time.

Section 3.203. In § 3.203(c), a new second sentence has been added to provide that payment of nonservice-connected burial benefits may be authorized, if otherwise in order, based upon evidence of service which VA relied upon to authorize payment of compensation or pension during the veteran's lifetime, provided that there is no evidence which would serve to create doubt as to the correctness of that service evidence.

Section 3.205. In § 3.205, paragraph (a)(1) has been amended to provide that payment of death benefits to a surviving spouse may be authorized, if otherwise in order, based upon an uncertified copy of the public record of marriage which was part of the VA record on the date of the veteran's death, and which substantiates the veteran's certified statement that VA relied upon to establish the claimant as the spouse for compensation or pension payments which the veteran was entitled to receive at the time of his or her death, provided that there is no evidence which would serve to create doubt as to the correctness of that copy.

REGULATORY AMENDMENT

3-93-16

Regulation affected: 38 CFR 3.357(a)

EFFECTIVE DATE OF REGULATION: October 6, 1993

Date Secretary Approved Regulation: August 26, 1993

Federal Register Citation: 58 FR 52017-18 (October 6, 1993)

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

A majority of the disabilities addressed in the VA's Schedule for Rating Disabilities (38 CFR part 4) do not specify criteria for a zero percent level. Once it has been determined that a disability is service-connected, it has been VA's consistent practice to assign a zero percent evaluation whenever the condition does not meet the stated minimum requirements for compensable evaluation. In recent decisions, however, the U.S. Court of Veterans Appeals (COVA) pointed out that unless an individual diagnostic code requires residual disability for a compensable evaluation, a zero percent evaluation is not authorized under §§ 3.357(a) and 4.31. See Rabideu v. Derwinski, U.S. Vet. App. No. 90-1296 and Conley v. Derwinski, U.S. Vet. App. No. 91-527. From the Court's analysis it is apparent that VA regulations are seen as being inconsistent with VA's longstanding practice of assigning a zero percent evaluation for any disability which does not meet the minimum requirements for a compensable evaluation.

We have amended § 4.31 to eliminate this perceived discrepancy between VA practice and regulations. We have changed the heading of § 4.31 from "A no-percent rating" to "Zero percent evaluations" to more accurately represent the issue addressed in the regulation.

Section 3.357. Paragraph (a) is deleted because it is duplicative of § 4.31 and the issue is more appropriately addressed in the rating schedule.

REGULATORY AMENDMENT

3-93-17

Regulations Affected: 38 CFR 3.103(f)

EFFECTIVE DATE OF REGULATIONS: July 14, 1993

Date Secretary Approved Regulations: September 22, 1993

Federal Register Citation: 58 FR 59365-66 (November 9, 1993)

The purpose of the following comments on the changes included in these amendments of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

38 U.S.C. 5104(b) provides that when the Secretary of Veterans Affairs denies a benefit sought, the notification to the claimant (and to the claimant's representative) of that decision must include a statement of the reasons for the denial of benefits and a summary of the evidence considered in reaching that decision. This requirement is not clearly reflected in the regulations at 38 CFR 3.103 concerning procedural due process and appellate rights. 38 CFR 3.103(f) stipulates that a claimant or beneficiary and his or her representative will be notified in writing concerning decisions that affect the payment of benefits or granting of relief and describes the content of such a notification, but does not specify the content of the notification when benefits sought are denied. We have amended § 3.103(f) accordingly.

Section 3.103. 38 CFR 3.103(f) has been amended to provide that any notice that VA has denied a benefit sought will include a summary of the evidence considered.

REGULATORY AMENDMENT

3-94-1

Regulations Affected: 38 CFR 3.307(a), 3.309(e), 3.311a, and 3.311b

EFFECTIVE DATE OF REGULATIONS: February 3, 1994

Date Secretary Approved Regulations: January 4, 1994

Federal Register Citation: 59 FR 5106-07 (February 3, 1994)

The purpose of the following comments on the changes included in these amendments of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

Section 2(a)(1) of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11 (1991), added 38 U.S.C. 1116 to establish presumptive service connection for veterans with service in the Republic of Vietnam during the Vietnam era who subsequently develop, to a degree of 10 percent or more, non-Hodgkin's lymphoma, soft-tissue sarcoma (subject to specified statutory exceptions), and chloracne or other acneform disease consistent with chloracne, even though there is no record of that disease during military service. Final regulations implementing this statutory provision were published in the Federal Register of May 19, 1993 (See 58 FR 29107-09).

Section 3 of Pub. L. 102-4 directed the Secretary to enter into an agreement with the National Academy of Sciences (NAS) to review the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam era and each disease suspected to be associated with such exposure. Congress mandated that NAS determine, to the extent possible, (1) whether there is a statistical association between the suspect diseases and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; (2) the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and (3) whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease.

Section 1116(b) of 38 U.S.C. provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association exists between exposure to an herbicide agent (i.e., a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era) and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. In making that determination, the Secretary is to consider reports received from NAS as well as other available sound medical and scientific evidence and analyses.

After reviewing 6,420 scientific or medical articles, consulting with outside experts, and conducting public hearings, NAS issued a report, entitled "Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam", on July 27, 1993. NAS concluded that there is an association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of chloracne, non-Hodgkin's lymphoma, and soft-tissue sarcoma, conditions for which VA is already paying compensation based upon the statutory presumptions established by Pub. L. 102-4.

The Secretary has determined that a positive association exists between exposure to herbicides used in the Republic of Vietnam and the subsequent development of chloracne, non-Hodgkin's lymphoma, and soft-tissue sarcoma. Chloracne has been linked to herbicide exposure in numerous epidemiologic studies of occupationally and environmentally exposed individuals. The NAS report considered a number of epidemiological studies, including studies involving occupational, environmental, and Vietnam exposures, and concluded that there was sufficient evidence for a positive association between exposure to herbicides used in the Republic of Vietnam and the development of non-Hodgkin's lymphoma. The NAS analysis gave great weight to the Swedish studies which demonstrated a relationship between herbicide exposure and the development of soft-tissue sarcoma.

NAS also concluded that there is an association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of PCT (a disease in which porphyrins are abnormally metabolized and which is characterized by thinning and blistering of the skin in sun-exposed areas) in genetically susceptible individuals. The last time VA had considered this issue, it had determined, after receiving the advice of the Veterans' Advisory Committee on Environmental Hazards (VACEH), that PCT does not result from exposure to dioxin (See 56 FR 52473-74). A majority of the VACEH members felt that while the literature, particularly that dealing with an industrial accident in Seveso, Italy, left open the possibility of an association, it was insufficient to meet the requirements for a "significant statistical association," the standard in effect at that time.

The NAS report found that case studies and animal studies are sufficient to conclude that there is a positive association between herbicide exposure and PCT in genetically predisposed individuals. After reviewing the NAS report, which found an association based on case and animal studies, and reconsidering the analysis of VACEH focusing on the issue of whether there is an association between herbicide -- rather than dioxin -- exposure and PCT, the Secretary has found that the credible evidence for an association outweighs the credible evidence against an association and that there is, therefore, a positive association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of PCT.

The clinical evidence provides that for both PCT and chloracne onset occurs soon after exposure, and that the conditions subside after exposure ceases. Pub. L. 102-4 established service connection for chloracne which occurred within one year of the veteran's last exposure to herbicide agents. A study of the onset of chloracne subsequent to an industrial accident involving herbicide production found that chloracne occurred within a few weeks of exposure, with one case occurring eleven months after the accident. We also propose to establish a one-year manifestation period for PCT. In our judgment, this is reasonable and consistent with manifestation periods established for other conditions for which presumptive service connection has been established (See 38 CFR 3.307(a)(3) and (4)). We have amended 38 CFR 3.307(a) and 3.309(e) to implement the Secretary's decision.

NAS also concluded that there is an association between herbicide exposure and the subsequent development of Hodgkin's disease, a neoplastic disease characterized by progressive anemia and enlargement of lymph nodes, spleen, and liver. Nearly all of the case-control and agricultural worker studies show increased risk for Hodgkin's disease. Although only a few of these results are statistically significant, those that are show a positive association. Those that are not statistically significant generally indicate increased risk of Hodgkin's disease and the pattern of the results is notably consistent.

Hodgkin's disease is a form of lymphoma with characteristic histopathologic findings, especially the presence of Reed-Sternberg cells. It also has a number of clinical features that typically differ from other lymphomas. While there were fewer studies for Hodgkin's disease than for non-Hodgkin's lymphoma, the NAS report noted that the pattern of results was consistent with the findings for non-Hodgkin's lymphoma and concluded that there was sufficient evidence for a positive association between exposure to the herbicides used in Vietnam and the development of Hodgkin's disease.

After reviewing the NAS report and noting (1) the difficulty which may occur in trying to distinguish between Hodgkin's disease and non-Hodgkin's lymphoma pathologically, (2) the occasional development of both diseases in the same patient, and (3) the biologic relationship between the two diseases in terms of tissue of origin, the Secretary has determined that there is an association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of Hodgkin's disease which manifests itself to a degree of 10 percent at any time after exposure. We have amended 38 CFR 3.309(e) to implement the Secretary's decision.

Currently, VA regulations address the issue of diseases resulting from exposure to herbicides used in Vietnam under two distinct sets of criteria: §§ 3.307 and 3.309 implement the statutory presumptions established by Congress in the Agent Orange Act of 1991, Pub. L. 102-4, while § 3.311a establishes service connection on the basis of exposure to herbicides containing dioxin, as previously authorized under the provisions of the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98-542. However, Section 10 of Pub. L. 102-4 amended Pub. L. 98-542 by removing the provisions concerning dioxin exposure and there is therefore no need for VA to maintain separate regulations on this issue. Since the regulations implementing the other statutory presumptions for service connection created by Congress appear at §§ 3.307 and 3.309, and because the Secretary of Veterans Affairs is specifically authorized to add to the list of presumptive conditions established by Pub. L. 102-4, we have deleted § 3.311a and will address the issue of diseases resulting from exposure to herbicides used in Vietnam exclusively at §§ 3.307(a)(6) and 3.309(e).

VA has also amended § 3.307(a)(6) so that it (1) bases the presumption of service connection on exposure to certain herbicide agents rather than on service in the Republic of Vietnam during the Vietnam era as it currently does, (2) incorporates the definition of the term "herbicide agent" from Pub. L. 102-4, (3) incorporates the definition of the term "service in the Republic of Vietnam" from 38 CFR 3.311a, and (4) provides that for those who served in the Republic of Vietnam the last day of exposure to an herbicide agent will be presumed to be the last date of service in the Republic of Vietnam during the Vietnam era. In addition, we have amended § 3.307(a)(6) to specify the chemicals in the herbicides used in the Republic of Vietnam. We also have amended § 3.309(e) by revising the title to reflect the fact that the basis of entitlement is exposure to certain herbicide agents, and to incorporate the complete list of soft-tissue sarcomas VA has established by prior rulemakings (See 56 FR 51651-53 and 58 FR 29107-09). Since the complete list of soft-tissue sarcomas will now appear at § 3.309(e), the note that currently follows § 3.309(e) is no longer necessary and we have removed it.

Section 3.307. The heading and § 3.307(a)(6) have been revised as described above. In § 3.307(a), the first sentence of the introductory text, remove the words "a disease associated with service in the Republic of Vietnam" and insert, in their place, the words "a disease associated with exposure to certain herbicide agents".

Section 3.309. 38 CFR 3.309(e) has been revised as described above.

Section 3.311a. 38 CFR 3.311a is removed.

Section 3.311b. 38 CFR 3.311b is redesignated as § 3.311.

REGULATORY AMENDMENT

3-94-2

Regulations Affected: 38 CFR 3.103(c)

EFFECTIVE DATE OF REGULATIONS: February 10, 1994

Date Secretary Approved Regulations: January 12, 1994

Federal Register Citation: 59 FR 6218 (February 10, 1994)

The purpose of the following comments on the changes included in these amendments of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

It has been the long-standing policy of VA to offer claimants personal hearings as an integral part of the claims adjudication process. Hearings are held so that claimants may introduce into the record, in person, any available evidence which the claimant may consider material and any arguments and contentions which he or she may consider pertinent. They are held only at the request of the claimant, however, since VA does not require that evidence be submitted in person. Any evidence which the claimant presents, whether documentary, testimonial, or any other form, becomes part of the permanent VA record.

In keeping with the purpose of claimant hearings, VA expects that the claimant and witnesses, if any, will be present at the hearing. A hearing will not normally be scheduled solely for the purpose of receiving argument by a claimant's representative, since the adjudication process affords adequate alternative opportunities for the representative to present argument in support of a claim. Although current regulations at 38 CFR 3.103(c)(2) do indicate that the purpose of a hearing is for a claimant to present evidence "in person," they do not clearly state that a claimant hearing will not normally be scheduled solely for the purpose of receiving argument by a claimant's representative.

38 CFR 3.103(c)(1) currently states that VA will furnish personnel who have original determinative authority for the conduct of claimant hearings at Veterans Benefits Administration (VBA) regional offices without specifying any requisite number. Because the regulation does not specify the number, we believe the term "personnel" might reasonably be construed as encompassing one, two, or several persons. Even though it is well established that unless the context indicates otherwise terms which are plural in form may include the singular as well, some might argue that the term "personnel" signifies that VA must furnish more than one person to conduct hearings.

We have eliminated any possible confusion the current wording may create by amending 38 CFR 3.103(c)(1) to state that VA will provide one or more VA employees who have original determinative authority to conduct claimant hearings. Congress, through enactment of what is now 38 U.S.C. 7102(b), has indicated its consent to single members holding hearings before the Board of Veterans Appeals. There is nothing in the statutes to suggest that Congress intended a different procedure with respect to VBA hearings. We have also made a conforming amendment to the language of 38 CFR 3.103(c)(2), which refers to the responsibility of VA personnel conducting hearings.

Section 3.103. In § 3.103(c)(1), in the third sentence, remove the word "personnel" and insert, in its place, the words "one or more employees"; in the fourth sentence, remove the words "VA personnel" and insert, in their place, the words "one or more VA employees". In § 3.103(c)(2), remove the first two sentences and add, in their place, the words "The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative." In § 3.103(c)(2), in what is now the fifth sentence, remove the word "personnel" and insert, in its place, the words "employee or employees".

REGULATORY AMENDMENT

3-94-3

Regulation Affected: 38 CFR 3.103(b)

EFFECTIVE DATE OF REGULATION: March 16, 1994

Date Secretary Approved Regulation: January 12, 1994

Federal Register Citation: 59 FR 6901 (February 14, 1994)

The purpose of the following comments on the changes included in this amendment of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

Section 3.103(b)(2) of title 38, Code of Federal Regulations, provides that if a VA decision involves discontinuance or reduction of benefit payments, VA generally is required to provide a pretermination/reduction notice providing 60 days within which a beneficiary may offer evidence to show why the action should not be taken. Final action must be deferred until expiration of the 60-day period. Section 3.103(b)(3) provides for exceptions to this requirement. The rationale behind the exceptions is to prevent issuance of benefit payments where it is reasonable to conclude that the beneficiary either would not receive them or would not be entitled to them, and that an attempt to give advance notice would be unsuccessful or of little or no value in protecting the beneficiary's rights. To the original three exceptions we have added the following:

(1) A written and signed statement from the beneficiary renouncing VA benefits. Delaying for pretermination notice would only serve to ensure continued payment of benefits which the beneficiary no longer wants and is no longer entitled to receive and would thereby create an overpayment.

(2) A written and signed statement from the beneficiary indicating that he or she has returned to active service. Since veterans reentering active service often are aware of the prohibition against concurrent receipt, in instances where these veterans notify VA specifically of the nature of their service and date of reentry, it is proper to terminate benefits as quickly as possible.

(3) A garnishment order issued under 42 U.S.C. 659(a). In these instances, VA would not need to provide a pretermination/reduction notice because an opportunity for a hearing and presentation of evidence has already been given by the court issuing the order.

Section 3.103. 38 CFR 3.103(b)(3)(i) has been amended to insert the words "to VA" after the word "provided" to remove any potential ambiguity. New paragraphs (b)(3)(iv), (b)(3)(v), and (b)(3)(vi) have been added to include the three new exceptions (renouncement, reentry into active service, and garnishment under 42 U.S.C. 659(a)) to the general requirement for pretermination/reduction notice.

REGULATORY AMENDMENT

3-94-4

Regulation Affected: 38 CFR 3.1003

EFFECTIVE DATE OF THE REGULATION: June 15, 1994

Date Secretary Approved Regulation: January 31, 1994

Federal Register Citation: 59 FR 25329-30 (May 16, 1994)

The purpose of the following comments on the changes included in this amendment of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

Section 5121(a) of title 38, United States Code, authorizes VA to pay an accrued amount of periodic monetary benefits which are due and unpaid at the time of a beneficiary's or claimant's death. Payment must be made in a specific order of precedence as designated in the statute. The amount of accrued payable is limited to a period not exceeding one year prior to the date of last entitlement. A claim for accrued benefits must be filed within one year after the date of death.

Section 5122 of title 38, United States Code, provides that the amount represented by a benefit check received but unnegotiated prior to a beneficiary's death shall be payable in the same order of precedence as listed in § 5121(a). Any amount not paid as provided in § 5122 will be paid upon settlement by the General Accounting Office to the estate of the deceased provided that the estate will not escheat. There is no time limit for filing a claim for the proceeds of such a check, but the amount payable may not include payment for the month of the beneficiary's death.

A precedent opinion of the General Counsel (O.G.C. Prec. 22-92) has held that the statutes intend a distinction between payment of accrued benefits under § 5121 and payment of the proceeds of an unnegotiated check under § 5122. After reviewing O.G.C. 22-92, we have amended 38 CFR 3.1003 to ensure that the regulation clearly and correctly expresses the requirements of 38 U.S.C. 5122.

Section 3.1003. We have amended 38 CFR 3.1003 to accomplish the following:

(1) restate for clarity much of the current text of the regulation;

(2) add introductory text concerning the return and cancellation of unnegotiated checks.

(3) add a paragraph concerning settlement by GAO and payment to the deceased beneficiary's estate; and

(4) remove unnecessary references to 38 CFR 3.1000 and 3.1008.

REGULATORY AMENDMENT

3-94-5

Regulation affected: 38 CFR 3.309.

EFFECTIVE DATE OF REGULATION: October 1, 1992

Date Secretary Approved Regulation: January 31, 1994

Federal Register Citation: 59 FR 25328-29, May 16, 1994

The purpose of the following comment on the change included in this amendment of VA regulations is to inform all concerned why this change is being made. This comment is not regulatory.

Section 2 of the Veterans' Radiation Exposure Amendments of 1992, Public Law 102-578, amended 38 U.S.C. 1112(c) by adding cancer of the urinary tract to the list of conditions for which presumptive service connection is authorized for veterans who participated in a radiation-risk activity. In the Federal Register of April 27, 1993 (58 FR 25563), VA published adjudication regulations to reflect this change.

Clarification of what structures are included in the urinary tract is needed, since this has been subject to various interpretations, and Congress did not indicate what they considered to be included.

We have defined urinary tract according to standard medical dictionaries (Dorland's Medical Dictionary, 27th Edition, p. 1740; Gould's Medical Dictionary, 4th Edition, p. 1432) and commonly used medical textbooks.

We have amended Section 3.309 by adding a note at the end of paragraph (d)(2)(xv) stating that for purposes of this section, the term "urinary tract" means the kidneys, renal pelves, ureters, urinary bladder, and urethra.

REGULATORY AMENDMENT

3-94-6

Regulations Affected: 38 CFR 3.307(a) and 3.309(e)

EFFECTIVE DATE OF THE REGULATION: June 9, 1994

Date Secretary Approved Regulation: April 28, 1994

Federal Register Citation: 59 FR 29723-24 (June 9, 1994)

The purpose of the following comments on the changes included in this amendment of VA regulations is to inform all concerned why the changes are being made. These comments are not regulatory.

Section 2(a)(1) of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11 (1991), added 38 U.S.C. 1116 which established presumptive service connection for veterans with service in the Republic of Vietnam during the Vietnam era who subsequently develop, to a degree of 10 percent or more, non-Hodgkin's lymphoma, soft-tissue sarcoma (subject to specified statutory exceptions), and chloracne or other acneform disease consistent with chloracne (within one year of the last date of active service in the Republic of Vietnam during the Vietnam era), even though there is no record of that disease during military service. Final regulations implementing this statutory provision were published in the Federal Register of May 19, 1993 (58 FR 29107-09).

Section 3 of Pub. L. 102-4 directed the Secretary to enter into an agreement with the National Academy of Sciences (NAS) to review the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam era and each disease suspected to be associated with such exposure. Congress mandated that NAS determine, to the extent possible: (1) whether there is a statistical association between the suspect diseases and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; (2) the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and (3) whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease.

Section 1116(b) of 38 U.S.C. provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association exists between exposure of humans to an herbicide agent (i.e., a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era) and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. An association is considered "positive" if the credible evidence for the association is equal to or outweighs the credible evidence against the association. In making that determination, the Secretary is to consider reports received from NAS as well as other available sound medical and scientific evidence and analyses.

After reviewing approximately 6,420 abstracts of scientific or medical articles and approximately 230 epidemiologic studies, consulting with outside experts, and conducting public hearings, NAS issued a report, entitled "Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam", on July 27, 1993. NAS concluded that there is sufficient evidence of an association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of chloracne, non-Hodgkin's lymphoma, soft-tissue sarcoma, Hodgkin's disease and porphyria cutanea tarda. VA was already paying compensation for the first three conditions based upon the statutory presumptions established by Pub. L. 102-4, and the Secretary announced that same day that he had concluded that a positive association exists between exposure to herbicides used in the Republic of Vietnam and the subsequent development of Hodgkin's disease and porphyria cutanea tarda. Final regulations for these two conditions were published in the Federal Register on February 3, 1994 (59 FR 5106-07).

The Secretary also announced that VA would review the remaining findings in the NAS report to determine whether a positive association exists between herbicide exposure and any other conditions. That review has been completed and the Secretary has concluded that a positive association exists for multiple myeloma and respiratory cancers.

The NAS report found "limited/suggestive evidence" -- a category it defined as meaning that evidence suggests an association between herbicide exposure and a specific disease, but that chance, bias, and confounding factors cannot be ruled out with confidence -- of an association between herbicide exposure and the subsequent development of multiple myeloma. VA, however, found the evidence concerning multiple myeloma, a malignant proliferation of plasma cells which are derived from B lymphocytes, to be convincing. Most of the studies reviewed by NAS showed an increased risk, although in most cases it was not a statistically significant increase. One occupational study found a relationship between herbicide exposure and multiple myeloma. Another study showed a clear association between herbicide exposure and multiple myeloma in both males and females. Moreover, multiple myeloma is closely related biologically to B-cell non-Hodgkin's lymphoma; consequently, the epidemiological evidence concerning non-Hodgkin's lymphoma gives added weight to the association between herbicide exposure and multiple myeloma. Based on this clinical consideration and the weight of the epidemiological evidence, the Secretary has determined that there is a positive association between herbicide exposure and multiple myeloma that manifests itself to a degree of 10 percent at any time after exposure. We are amending 38 CFR 3.309(e) to implement the Secretary's decision. This amendment is effective June 9, 1994, the date of publication of the final rule, as provided by Pub. L. 102-4.

The NAS report also found limited/suggestive evidence of an association between herbicide exposure and the subsequent development of respiratory cancers, specifically cancers of the lung, larynx, or trachea. For study purposes, NAS included cancer of the bronchus when it considered cancer of the lung; therefore, we are including cancer of the bronchus within the scope of the presumption.

In reviewing the NAS report, which noted that not all studies had fully controlled for or evaluated smoking as a confounding factor, VA gave weight to the fact that the studies found high relative risks for respiratory cancers in production workers. One study showed an increased risk with the duration of exposure. VA also noted that despite the failure of some studies to control for smoking, it is unlikely that there were major differences in smoking patterns between the study and control groups. Considering all of the evidence, the Secretary has determined that the credible evidence for an association outweighs the credible evidence against an association and that there is, therefore, a positive association between exposure to herbicides used in the Republic of Vietnam and the subsequent development of respiratory cancers.

VA also found that the weight of the available evidence indicates that chemically-induced respiratory cancers manifest within a definite period following exposure, after which there is little effect from the exposure. In our judgment, it is reasonable to assume that respiratory cancers due to herbicide exposure will show a risk pattern similar to other chemically-induced respiratory cancers, and we are providing in our rule that respiratory cancer will be presumed service connected only if it is manifest within 30 years after exposure. The longest manifestation period noted for a respiratory cancer following herbicide exposure is about 30 years. If future studies indicate that this manifestation period is inappropriate, VA will amend it accordingly. We are amending 38 CFR 3.307(a)(6)(ii) and 3.309(e) to implement the Secretary's decision. This amendment is effective June 9, 1994, the date of publication of the final rule, as provided by Pub. L. 102-4.

38 U.S.C. 1113 provides that where there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease which is a recognized cause of any of the diseases for which presumptive service connection may be allowed under the provisions of 38 U.S.C. 1112 (i.e., chronic diseases, tropical diseases, prisoner-of-war related diseases, or diseases specific to radiation-exposed veterans), has been suffered between the date of separation from service and the onset of any such diseases, or the disability is due to the veteran's own willful misconduct, presumptive service connection will not be in order. Section 2(b) of Pub. L. 102-4 amends 38 U.S.C. 1113 so that its provisions also apply to the presumptive conditions associated with herbicide exposure under 38 U.S.C. 1116. Consequently, service connection for multiple myeloma or respiratory cancers based on herbicide exposure is precluded if there is affirmative evidence that establishes a non-service related supervening condition or event as the cause of the multiple myeloma or respiratory cancers, or the disability is due to the veteran's own willful misconduct (See 38 U.S.C. 1113).

Section 3.307. 38 CFR 3.307(a)(6)(ii) has been amended as described above.

Section 3.309. 38 CFR 3.309(e) has been amended as described above.

REGULATORY AMENDMENT

3-94-7

Regulation Affected: 38 CFR 3.53

EFFECTIVE DATE OF THE REGULATION: May, 13, 1993

Date Secretary Approved Regulation: January 13, 1994