Survivors and Dependents Education: Extension of Eligibility Period

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AI45

Survivors and Dependents Education: Extension of Eligibility

Period

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the educational assistance and

educational benefit regulations of the Department of Veterans Affairs

(VA). It restores provisions that govern the extension of the period

eligible spouses and surviving spouses have to use Survivors' and

Dependents' Educational Assistance (DEA).

EFFECTIVE DATE: October 3, 1997.

FOR FURTHER INFORMATION CONTACT: June C. Schaeffer, Assistant Director

for Policy and Program Administration, Education Service, Veterans

Benefits Administration, 202-273-7187.

SUPPLEMENTARY INFORMATION: In a document published in the Federal

Register on January 9, 1997 (62 FR 1303), VA proposed to amend the

``Survivors' and Dependents' Educational Assistance Under 38 U.S.C.

Chapter 35'' regulations which are set forth in 38 CFR 21.3001 et seq.

It was proposed to add to the regulations a definition and a rule

concerning qualifying for an extension of time for a spouse or

surviving spouse to use Survivor's and Dependents' Educational

Assistance. Such an extension is permitted when she or he could not

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complete a program of education within the normal ten-year period for

doing so due to a physical or mental disability that is not the result

of willful misconduct. This definition and rule were removed in error

from the Code of Federal Regulations when Sec. 21.1043 was removed.

Interested persons were given 60 days to submit comments. One

comment from an individual was received.

That individual suggested that, in addition to making the proposed

changes, VA should restore Sec. 21.1043 to the Code of Federal

Regulations. He argued that by doing so a Vietnam Era veteran who had

been unable to complete his or her training within the ten-year period

allowed under the Vietnam Era GI Bill due to a physical or mental

disability would be able to resume training under the Vietnam Era GI

Bill.

After careful consideration VA has determined that there is no

legal basis for restoring Sec. 21.1043 to the Code of Federal

Regulations in order to provide benefits under the Vietnam Era GI Bill.

The statutory provisions governing the Vietnam Era GI Bill are found in

38 U.S.C. chapter 34. Section 3462(e) states, ``No educational

assistance shall be afforded any eligible veterans under this chapter

or chapter 36 of this title after December 31, 1989.'' Thus, if a

Vietnam Era veteran who was unable to pursue a program of education

under the Vietnam Era GI Bill due to a physical or mental disability,

recovered from the disability to the point where he or she would be

able to pursue that program in 1997, VA would be prohibited by 38

U.S.C. 3462(e) from paying educational assistance to that veteran.

Accordingly, based on the rationale set forth in the proposed rule

document, we are adopting the provisions of the proposed rule as a

final rule.

Paperwork Reduction Act of 1995

Information collection and recordkeeping requirements associated

with this final rule (38 CFR 21.3047) have been approved by OMB under

the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3520) and

have been assigned OMB control number 2900-0573. The regulation

requires that a spouse or surviving spouse who wants an extension of

the applicable time limit to use educational assistance provided under

DEA must apply for it. Since VA would consider any communication from

such an individual seeking this extension to be an application, there

are no corresponding form numbers.

VA is not authorized to impose a penalty on persons for failure to

comply with information collection requirements which do not display a

current OMB control number, if required.

The Secretary of Veterans Affairs hereby certifies 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. This final rule affects only

individuals. Pursuant to 5 U.S.C. 605(b), this final rule, therefore,

is exempt from the initial and final regulatory flexibility analysis

requirements of sections 603 and 604.

(The Catalog of Federal Domestic Assistance number for the program

affected by this proposed rule is 64.117)

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: August 28, 1997.

Hershel W. Gober,

Acting Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 21 (subparts

C and F) is amended as set forth below.

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart C--Survivors' and Dependents' Educational Assistance Under

38 U.S.C. Chapter 35

1. The authority citation for subpart C continues to read as

follows:

Authority: 38 U.S.C. 501(a), 512, 3500-3566, unless otherwise

noted.

2. In Sec. 21.3021, paragraph (l) is redesignated as paragraph (m);

and new paragraph (l) is added, to read as follows:

Sec. 21.3021 Definitions.

* * * * *

(l) Disabling effects of chronic alcoholism. (1) The term disabling

effects of chronic alcoholism means alcohol-induced physical or mental

disorders or both, such as habitual intoxication, withdrawal, delirium,

amnesia, dementia, and other like manifestations of chronic alcoholism

which in the particular case:

(i) Have been medically diagnosed as manifestations of alcohol

dependency or chronic alcohol abuse; and

(ii) Are determined to have prevented commencement or completion of

the affected individual's chosen program of education.

(2) A diagnosis of alcoholism, chronic alcoholism, alcohol-

dependency, chronic alcohol abuse, etc., in and of itself, does not

satisfy the definition of this term.

(3) Injury sustained by an eligible spouse or surviving spouse as a

proximate and immediate result of activity undertaken by the eligible

spouse or surviving spouse while physically or mentally unqualified to

do so due to alcoholic intoxication is not considered a disabling

effect of chronic alcoholism.

(Authority: 38 U.S.C. 105, 3512(b))

* * * * *

3. In Sec. 21.3046, paragraph (e) is removed.

4. Section 21.3047 is added, to read as follows:

Sec. 21.3047 Extended period of eligibility due to physical or mental

disability.

(a) General. (1) An eligible spouse or surviving spouse shall be

granted an extension of the applicable period of eligibility as

otherwise determined by Sec. 21.3046 provided the eligible spouse or

surviving spouse:

(i) Applies for the extension within the appropriate time limit;

(ii) Was prevented from initiating or completing the chosen program

of education within the otherwise applicable period of eligibility

because of a physical or mental disability that did not result from the

willful misconduct of the eligible spouse or surviving spouse;

(iii) Provides VA with any requested evidence tending to show that

the requirement of paragraph (a)(1)(ii) of this section has been met;

and

(iv) Is otherwise eligible for payment of educational assistance

for the training pursuant to 38 U.S.C. chapter 35.

(2) In determining whether the eligible spouse or surviving spouse

was prevented from initiating or completing the chosen program of

education because of a physical or mental disability, VA will consider

the following:

(i) It must be clearly established by medical evidence that such a

program of education was medically infeasible.

(ii) An eligible spouse or surviving spouse who is disabled for a

period of 30 days or less will not be considered as having been

prevented from initiating or completing a chosen program, unless

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the evidence establishes that the eligible spouse or surviving spouse

was prevented from enrolling or reenrolling in the chosen program of

education, or was forced to discontinue attendance, because of the

short disability.

(iii) VA will not consider the disabling effects of chronic

alcoholism to be the result of willful misconduct and will consider

those disabling effects as physical or mental disabilities.

(b) Commencing date. The eligible spouse or surviving spouse shall

elect the commencing date of an extended period of eligibility. The

date chosen--

(1) Must be on or after the original date of expiration of

eligibility as determined by Sec. 21.3046(c); and

(2) Must be on or before the ninetieth day following the date on

which the eligible spouse's or surviving spouse's application for an

extension was approved by VA, if the eligible spouse or surviving

spouse is training during the extended period of eligibility in a

course not organized on a term, quarter, or semester basis; or

(3) Must be on or before the first ordinary term, quarter, or

semester following the ninetieth day after the eligible spouse's or

surviving spouse's application for an extension was approved by VA if

the eligible spouse or surviving spouse is training during the extended

period of eligibility in a course organized on a term, quarter, or

semester basis.

(Authority: 38 U.S.C. 3512(b))

(c) Length of extended periods of eligibility. An eligible spouse's

or surviving spouse's extended period of eligibility shall be for the

length of time that the individual was prevented from initiating or

completing his or her chosen program of education. This shall be

determined as follows:

(1) If the eligible spouse or surviving spouse is in training in a

course organized on a term, quarter, or semester basis, his or her

extended period of eligibility shall contain the same number of days as

the number of days from the date during the eligible spouse's or

surviving spouse's original period of eligibility that his or her

training became medically infeasible to the earliest of the following

dates:

(i) The commencing date of the ordinary term, quarter, or semester

following the day the eligible spouse's or surviving spouse's training

became medically feasible;

(ii) The ending date of the eligible spouse's or surviving spouse's

period of eligibility as determined by Sec. 21.3046(c); or

(iii) The date the eligible spouse or surviving spouse resumed

training.

(2) If the eligible spouse or surviving spouse is training in a

course not organized on a term, quarter, or semester basis, his or her

extended period of eligibility shall contain the same number of days

from the date during the eligible spouse's or surviving spouse's

original period of eligibility that his or her training became

medically infeasible to the earlier of the following dates:

(i) The date the eligible spouse's or surviving spouse's training

became medically feasible; or

(ii) The ending date of the eligible spouse's or surviving spouse's

period of eligibility as determined by Sec. 21.3046.

(Paperwork requirements were approved by the Office of Management

and Budget under control number 2900-0573)

(Authority: 38 U.S.C. 3512(b))

Subpart F--Education Loans

5. The authority citation for subpart F continues to read as

follows:

Authority: 38 U.S.C. 501, 3537, 3698, 3699, unless otherwise

noted.

6. In Sec. 21.4501, paragraph (b)(1) is amended by removing ``(d)''

and adding, in its place, ``(d), or Sec. 21.3047''; paragraph

(b)(2)(iv) is amended by removing ``(d)'' and adding, in its place,

``(d), or Sec. 21.3047''; paragraph (b)(2)(v)(A) is amended by removing

``(d)'' and adding, in its place, ``(d), or Sec. 21.3047''; paragraph

(b)(2)(v)(B) is amended by removing ``(d)'' and adding, in its place,

``(d), or Sec. 21.3047'', paragraph (c)(1) is amended by removing

``(d)'' and adding, in its place ``(d), or Sec. 21.3047''; and

paragraph (c)(3) is amended by removing ``(d)'' and adding, in its

place, ``(d), or Sec. 21.3047''.

[FR Doc. 97-26253 Filed 10-2-97; 8:45 am]

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