Vocational rehabilitation and education: Veterans education Educational assistance and benefits; claims and effective dates,
[Federal Register: May 4, 1999 (Volume 64, Number 85)]
[Rules and Regulations]
[Page 23769-23773]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my99-8]
DEPARTMENT OF DEFENSE
DEPARTMENT OF TRANSPORTATION Coast Guard
DEPARTMENT OF VETERANS AFFAIRS
RIN 2900-AH76
Claims and Effective Dates for the Award of Educational Assistance
AGENCIES: Department of Defense, Department of Transportation (Coast Guard), and Department of Veterans Affairs.
ACTION: Final rule.
SUMMARY: This document amends the educational assistance and educational benefit regulations of the Department of Veterans Affairs (VA). It establishes a standard for determining what constitutes a formal claim, an informal claim, and an abandoned claim that can be applied uniformly to the educational assistance programs VA administers. In addition, it establishes less restrictive effective dates for awards of educational assistance; establishes uniform time limits for acting to complete claims; and states VA's responsibilities when a claim is filed. This rule will result in a more uniform adjudication of claims for educational assistance under each of the education programs VA administers.
DATES: Effective Date: June 3, 1999.
FOR FURTHER INFORMATION CONTACT: William G. Susling, Jr., Education Adviser, Education Service (225C), Veterans Benefits Administration, (202) 273-7187.
SUPPLEMENTARY INFORMATION: In a document published in the Federal Register on April 29, 1998 (63 FR 23408), VA proposed amendments to several regulations. VA proposed to amend the regulations to establish a standard for determining what constitutes a formal claim, an informal claim, and an abandoned claim that can be applied uniformly to the educational assistance programs VA administers. In addition, it was proposed to establish less restrictive effective dates for awards of educational assistance; to establish uniform time limits for acting to complete claims; and to state VA's responsibilities when a claim is filed. Comments were sought under the Paperwork Reduction Act concerning the collection of information in the proposed Sec. 21.1030.
Interested persons were given 60 days to submit comments. No comments were received. Accordingly, based on
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the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as a final rule. A few nonsubstantive changes have been made to the proposed rule for clarity.
The Department of Defense (DOD) is issuing this final rule jointly with VA insofar as it relates to VEAP and EATP. These programs are funded by DOD and administered by VA. DOD, the Department of Transportation (Coast Guard), and VA are jointly issuing this final rule insofar as it relates to the MGIB-SR. This program is funded by DOD and the Coast Guard, and is administered by VA. The remainder of this final rule is issued solely by VA.
Paperwork Reduction Act of 1995
Information collection requirements in this final rule (concerning 38 CFR 21.1030 have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and have been assigned OMB control number 2900-0596. The provisions of Sec. 21.1030 restate a statutory requirement (38 U.S.C. 5101(a)) that provides that no benefits may be paid or furnished to an individual until VA receives from the individual a claim for the benefit sought in the form prescribed by the Secretary. The regulation adds language as to what information needs to be included in a claim.
OMB assigns a control number for each collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The valid OMB control number assigned to the collection of information in this final rule is displayed at the end of the affected section of regulations.
The signers of this document hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The final rule will affect only individuals and will not directly affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of Secs. 602 and 604.
The Catalog of Federal Domestic Assistance numbers for the programs affected by this proposed rule are 64.117, 64.120, and 64.124. This proposed rule will also affect the Montgomery GI Bill--Selected Reserve which has no Catalog of Federal Domestic Assistance number.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs-education, Grant programs-veterans, Health care, Loan programs-education, Loan programs-veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
Approved: January 6, 1999. Togo D. West, Jr., Secretary of Veterans Affairs.
Approved: April 27, 1999. P.A. Tracey, Vice Admiral, USN, Deputy Assistant Secretary (Military Personnel Policy), Department of Defense.
Approved: March 22, 1999. F.L. Ames, Rear Admiral, U.S. Coast Guard, Assistant Commandant for Human Resources.
For the reasons set out above, 38 CFR part 21 (subparts B, C, D, G, H, K, and L) is amended as set forth below.
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart B--Claims and Applications for Educational Assistance
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The authority citation for part 21, subpart B continues to read as follows:
Authority: 38 U.S.C. 501(a), 38 U.S.C. chapter 51, unless otherwise noted.
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Section 21.1029 is added, to read as follows:
Sec. 21.1029 Definitions.
These definitions apply to this subpart, and to subparts C, D, G, H, K, and L of this part.
(a) Abandoned claim. A claim is an abandoned claim if:
(1) In connection with a formal claim VA requests that the claimant furnish additional evidence, and the claimant--
(i) Does not furnish that evidence within one year of the date of the request; and
(ii) Does not show good cause why the evidence could not have been submitted within one year of the date of the request; or
(2) In connection with an informal claim, VA requests a formal claim, and--
(i) VA does not receive the formal claim within one year of the date of request; and
(ii) The claimant does not show good cause why he or she could not have filedthe formal claim in sufficient time for VA to have received it within one year of the date of the request.
(Authority: 38 U.S.C. 5103(a))
(b) Date of claim. The date of claim is the date on which a valid claim or application for educational assistance is considered to have been filedwith VA, for purposes of determining the commencing date of an award of that educational assistance.
(1) If an informal claim is filedand VA receives a formal claim within one year of the date VA requested it, or within such other period of time as provided by Sec. 21.1032, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the informal claim.
(2) If a formal claim is filedother than as described in paragraph (b)(1) of this section, the date of claim, subject to the provisions of paragraph (b)(3) of this section, is the date VA received the formal claim.
(3) If a formal claim itself is abandoned and a new formal or informal claim is filed, the date of claim is as provided in paragraph (b)(1) or (b)(2) of this section, as appropriate.
(Authority: 38 U.S.C. 5103)
(c) Formal claim. A claim is a formal claim when the claimant (or his or her authorized representative) files the claim with VA, and--
(1) The claim is a claim for--
(i) Educational assistance;
(ii) An increase in educational assistance; or
(iii) An extension of the eligibility period for receiving educational assistance; and
(2) If there is a form (either paper or electronic) prescribed under this part, the claim is filedon that form.
(Authority: 38 U.S.C. 5101(a))
(d) Informal claim. (1) If a form (either paper or electronic) has been prescribed under this part to use in claiming the benefit sought, the term informal claim means--
(i) Any communication from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance; or
(ii) A claim from an individual or from an authorized representative on that individual's behalf for a benefit described in paragraph (c)(1)(i) of this section that is filedin a document other than in the prescribed form.
[[Page 23771]]
(2) If a form (either paper or electronic) has not been prescribed to use in claiming the benefit sought, the term informal claim means any communication, other than a formal claim, from an individual, or from an authorized representative or a Member of Congress on that individual's behalf that indicates a desire on the part of the individual to claim or to apply for VA-administered educational assistance.
(3) When VA requests evidence in connection with a claim, and the claimant submits that evidence to VA after having abandoned the claim, the claimant's submission of the evidence is an informal claim.
(4) The act of enrolling in an approved school is not an informal claim.
(5) VA will not consider a communication received from a service organization, an attorney, or agent to be an informal claim if a valid power of attorney, executed by the claimant, is not in effect at the time the communication is written.
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3471, 3513, 5101(a), 5102, 5901)
(e) VA. The term VA means the United States Department of Veterans Affairs.
(Authority: 38 U.S.C. 301)
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Section 21.1030 is revised; and a parenthetical is added at the end of the section to read as follows:
Sec. 21.1030 Claims.
An individual must file a formal claim for educational assistance for pursuit of a program of education, indicating the proposed place of training, the school or training establishment, the objective of the program of education, and such other information as the Secretary may require. A servicemember also must consult with his or her service education officer before filing a formal claim for educational assistance.
(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0596.)
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3471, 3513, 5101(a))
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Section 21.1031 is revised to read as follows.
Sec. 21.1031 VA responsibilities when a claim is filed.
(a) VA will furnish forms. VA will furnish all necessary claim forms, instructions, and, if appropriate, a description of any supporting evidence required upon receipt of an informal claim.
(Authority: 38 U.S.C. 5102)
(b) Request for additional evidence. If a formal claim for educational assistance is incomplete, or if VA requires additional evidence or information to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and of the time limit provisions of Sec. 21.1032(a).
(Authority: 38 U.S.C. 5103)
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Section 21.1032 is revised to read as follows:
Sec. 21.1032 Time limits.
The provisions of this section are applicable to informal claims and formal claims.
(a) Failure to furnish form, information, or notice of time limit. VA's failure to give a claimant or potential claimant any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim will not extend the time periods allowed for these actions.
(Authority: 38 U.S.C. 5101, 5113)
(b) Notice of time limit for filing evidence. If a claimant's claim is incomplete, VA will notify the claimant of the evidence necessary to complete the claim. Unless payment of educational assistance is permitted by paragraph (e) of this section, if the evidence is not received within one year from the date of such notification, VA will not pay educational assistance by reason of that claim.
(Authority: 38 U.S.C. 5103)
(c) Time limit for filing a claim for an extended period of eligibility under 38 U.S.C. chapter 30, 32, or 35. VA must receive a claim for an extended period of eligibility provided by Sec. 21.3047, Sec. 21.5042, or Sec. 21.7051 by the later of the following dates.
(1) One year from the date on which the spouse's, surviving spouse's, or veteran's original period of eligibility ended; or
(2) One year from the date on which the spouse's, surviving spouse's, or veteran's physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education.
(Authority: 38 U.S.C. 3031(d), 3232(a), 3512)
(d) Time limit for filing for an extension of eligibility due to suspension of program (38 U.S.C. chapter 35).
VA must receive a claim for an extended period of eligibility due to a suspension of an eligible child's program of education as provided in Sec. 21.3043 by the later of the following dates.
(1) One year from the date on which the child's original period of eligibility ended; or
(2) One year from the date on which the condition that caused the suspension of the program of education ceased to exist.
(Authority: 38 U.S.C. 3512(c))
(e) Extension for good cause. (1) VA may extend for good cause a time limit within which a claimant or beneficiary is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension only when the following conditions are met:
(i) When a claimant or beneficiary requests an extension after expiration of a time limit, he or she must take the required action concurrently with or before the filing of that request; and
(ii) The claimant or beneficiary must show good cause as to why he or she could not take the required action during the original time period and could not have taken the required action sooner.
(2) Denials of time limit extensions are separately appealable issues.
(Authority: 38 U.S.C. 5101, 5113)
(f) Computation of time limit. (1) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, VA will exclude the first day of the specified period, and will include the last day. This rule is applicable in cases in which the time limit expires on a workday. When the time limit would expire on a Saturday, Sunday, or holiday, the VA will include the next succeeding day in the computation.
(2) The first day of the specified period referred to in paragraph (f)(1) of this section will be the date of the letter of notification to the claimant or beneficiary for purposes of computing time limits. As to appeals, see Secs. 20.302 and 20.305 of this chapter.
(Authority: 38 U.S.C. 501(a))
Subpart C--Survivors' and Dependents' Educational Assistance Under 38 U.S.C. Chapter 35
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The authority citation for subpart C continues to read as follows:
Authority: 38 U.S.C. 501(a), 512, 3500-3566, unless otherwise noted.
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In Sec. 21.3021, paragraph (m) is amended by removing ``Sec. 21.4200'', and adding, in its place, ``Secs. 21.1029 and 21.4200''.
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Section 21.3030 is revised to read as follows:
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Sec. 21.3030 Claims.
The provisions of subpart B of this part apply with respect to submission of a claim for educational assistance under 38 U.S.C. chapter 35, VA actions upon receiving a claim, and time limits connected with claims.
(Authority: 38 U.S.C. 3513, 5101, 5102, 5103)
Secs. 21.3031 and 21.3032 [Removed]
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Sections 21.3031 and 21.3032 are removed.
Subpart D--Administration of Educational Assistance Programs
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The authority citation for subpart D is revised to read as follows:
Authority: 10 U.S.C. 2141 note, ch. 1606, 38 U.S.C. 501(a), chs. 30, 32, 34, 35, 36, unless otherwise noted.
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In Sec. 21.4131, the introductory text; and paragraphs (a) and (d) are revised, to read as follows:
Sec. 21.4131 Commencing dates.
VA will determine the commencing date of an award or increased award of educational assistance under this section. When more than one paragraph in this section applies, VA will award educational assistance using the latest of the applicable commencing dates.
(a) Entrance or reentrance including change of program or educational institution: individual eligible under 38 U.S.C. chapter 32. When an eligible veteran or servicemember enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) If the award is the first award of educational assistance for the program of education the veteran or servicemember is pursuing, the commencing date of the award of educational assistance is the latest of:
(i) The date the educational institution certifies under paragraph (b) or (c) of this section;
(ii) One year before the date of claim as determined by Sec. 21.1029(b);
(iii) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or
(2) If the award is the second or subsequent award of educational assistance for the program of education the veteran or servicemember is pursuing, the effective date of the award of educational assistance is the later of--
(i) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(ii) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(Authority: 38 U.S.C. 3672, 5103, 5110(b), 5113) * * * * *
(d) Entrance or reentrance including change of program or educational institution: individual eligible under 38 U.S.C. chapter 35. When a person eligible to receive educational assistance under 38 U.S.C. chapter 35 enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) If the award is the first award of educational assistance for the program of education the eligible person is pursuing, the commencing date of the award of educational assistance is the latest of:
(i) The beginning date of eligibility as determined by Sec. 21.3041(a) or (b) or by Sec. 21.3046(a) or (b), whichever is applicable;
(ii) One year before the date of claim as determined by Sec. 21.1029(b);
(iii) The date the educational institution certifies under paragraph (b) or (c) of this section;
(iv) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or
(2) If the award is the second or subsequent award of educational assistance for that program, the effective date of the award of educational assistance is the later of--
(i) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(ii) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(Authority: 38 U.S.C. 3014, 3023, 3034, 3672, 5103)
Subpart G--Post-Vietnam Era Veterans' Educational Assistance Under 38 U.S.C. Chapter 32
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The authority citation for subpart G continues to read as follows:
Authority: 38 U.S.C. 501(a), ch. 32, unless otherwise noted.
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In Sec. 21.5030, the heading for the section and paragraph (c) introductory text, are revised; paragraphs (c)(1), (c)(2), and (c)(3) are redesignated as paragraphs (c)(2), (c)(3), and (c)(4), respectively; a new paragraph (c)(1) is added; and a newly redesignated paragraph (c)(3) is revised, to read as follows:
Sec. 21.5030 Applications, claims, and time limits.
* * * * *
(c) The provisions of the following sections shall apply to claims for educational assistance under 38 U.S.C. chapter 32:
(1) Section 21.1029--Definitions. * * * * *
(3) Section 21.1031--VA responsibilities when a claim is filed. * * * * *
Sec. 21.5130 [Amended]
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In Sec. 21.5130, paragraph (a) is amended by removing ``dates'', and adding, in its place, ``dates (except paragraph (d))''.
Subpart H--Educational Assistance Test Program
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The authority citation for subpart H continues to read as follows:
Authority: 10 U.S.C. ch. 107; 38 U.S.C. 501(a), 3695, 5101, 5113, 5303A; 42 U.S.C 2000; sec. 901, Pub. L. 96-342, 94 Stat. 1111- 1114, unless otherwise noted.
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Section 21.5730 is revised to read as follows:
Sec. 21.5730 Applications, claims, and time limits.
The provisions of subpart B of this part apply with respect to claims for educational assistance under the educational program described in Sec. 21.5701, VA actions upon receiving a claim, and time limits connected with claims.
(Authority: 10 U.S.C. 2141, 2149; 38 U.S.C. 5101, 5102, 5103)
Sec. 21.5732 [Removed]
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Section 21.5732 is removed.
Subpart K--All Volunteer Force Educational Assistance Program (Montgomery GI Bill--Active Duty)
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The authority citation for Subpart K continues to read as follows:
Authority: 38 U.S.C. 501(a), chs. 30 and 36, unless otherwise noted.
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In Sec. 21.7020, the introductory text is revised to read as follows:
Sec. 21.7020 Definitions.
For the purposes of regulations from Sec. 21.7000 through Sec. 21.7499 and the payment of basic educational assistance and supplemental educational assistance under 38 U.S.C. chapter 30, the following definitions apply. (See also additional definitions in Sec. 21.1029). * * * * *
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Section 21.7030 is revised to read as follows:
Sec. 21.7030 Applications, claims, and time limits.
The provisions of subpart B of this part apply with respect to claims for educational assistance under 38 U.S.C. chapter 30, VA actions upon receiving a claim, and time limits connected with claims.
(Authority: 38 U.S.C. 3018B, 3034(a), 3471, 5101, 5102, 5103)
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In Sec. 21.7032, paragraphs (b), (c), (d), and (e) are removed; paragraph (f) is redesignated as paragraph (b); and the section heading and paragraph (a) are revised to read as follows:
Sec. 21.7032 Time limits for making elections.
(a) Scope of this section. The provisions of this section are applicable to certain elections to receive educational assistance under 38 U.S.C. ch. 30. For time limits governing formal and informal claims for educational assistance under 38 U.S.C. ch. 30, see Sec. 21.1032.
(Authority: 38 U.S.C. 3018B) * * * * *
Sec. 21.7051 [Amended]
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In Sec. 21.7051, paragraph (a)(1) is amended by removing ``Sec. 21.7032(e) of this part'' and adding, in its place, ``Sec. 21.1032(c)''.
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In Sec. 21.7131, paragraph (d) is removed and reserved; paragraph (e)(1)(iii) is amended by removing ``subdivision (ii)(B) of this subparagraph'' and adding, in its place, ``paragraph (e)(1)(ii)(B) of this section''; paragraph (e)(2)(i) introductory text is removed; paragraphs (e)(2)(i)(A), (e)(2)(i)(B), and (e)(2)(i)(C) are redesignated as new (e)(2)(i), (e)(2)(ii), and (e)(2)(iii), respectively; the introductory text and paragraph (a) are revised to read as follows:
Sec. 21.7131 Commencing dates.
VA will determine the commencing date of an award or increased award of educational assistance under this section. When more than one paragraph in this section applies, VA will award educational assistance using the latest of the applicable commencing dates.
(a) Entrance or reentrance including change of program or educational institution. When an eligible veteran or servicemember enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) If the award is the first award of educational assistance for the program of education the veteran or servicemember is pursuing, the commencing date of the award of educational assistance is the latest of:
(i) The date the educational institution certifies under paragraph (b) or (c) of this section;
(ii) One year before the date of claim as determined by Sec. 21.1029(b);
(iii) The effective date of the approval of the course, or one year before the date VA receives the approval notice whichever is later; or
(2) If the award is the second or subsequent award of educational assistance for the program of education the veteran or servicemember is pursuing, the effective date of the award of educational assistance is the later of--
(i) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(ii) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(Authority: 38 U.S.C. 3014, 3023, 3034, 3672, 5103, 5110(b), 5113) * * * * *
Subpart L--Educational Assistance for Members of the Selected Reserve
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The authority citation for subpart L is revised to read as follows:
Authority: 10 U.S.C. ch. 1606; 38 U.S.C. 501(a), 512, ch. 36, unless otherwise noted.
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In Sec. 21.7520, the introductory text is revised to read as follows:
Sec. 21.7520 Definitions.
For the purposes of regulations from Sec. 21.7500 through Sec. 21.7999, governing the administration and payment of educational assistance under 10 U.S.C. chapter 1606, the Selected Reserve Educational Assistance Program, the following definitions apply. (See also additional definitions in Sec. 21.1029). * * * * *
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Section 21.7530 is revised to read as follows:
Sec. 21.7530 Applications, claims, and time limits.
The provisions of subpart B of this part apply with respect to claims for educational assistance under 10 U.S.C. chapter 1606, VA actions upon receiving a claim, and time limits connected with claims.
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3472)
Sec. 21.7532 [Removed]
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Section 21.7532 is removed.
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In Sec. 21.7631, paragraph (d) is removed; paragraphs (e), (f), (g), and (h) are redesignated as paragraphs (d), (e), (f), and (g), respectively; and the introductory text and paragraph (a) are revised to read as follows:
Sec. 21.7631 Commencing dates.
VA will determine the commencing date of an award or increased award of educational assistance under this section. When more than one paragraph in this section applies, VA will award educational assistance using the latest of the applicable commencing dates.
(a) Entrance or reentrance including change of program or educational institution. When an eligible reservist enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) If the award is the first award of educational assistance for the program of education the reservist is pursuing, the commencing date of the award of educational assistance is the latest of:
(i) The date the educational institution certifies under paragraph (b) or (c) of this section;
(ii) One year before the date of claim as determined by Sec. 21.1029(b);
(iii) The effective date of the approval of the course, or one year before the date VA receives the approval notice whichever is later; or
(2) If the award is the second or subsequent award of educational assistance for the program of education the reservist is pursuing, the effective date of the award of educational assistance is the later of--
(i) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(ii) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3672, 5103) * * * * *
[FR Doc. 99-11069Filed5-3-99; 8:45 am]
BILLING CODE 8320-01-P
