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38 C.F.R. §§ 21.320–21.334

8 sections in range

§21.320. Awards for subsistence allowance and authorization of rehabilitation services.

38 C.F.R. § 21.320

Awards providing for payment of a subsistence allowance and authorization of services necessary for rehabilitation may be prepared when an IWRP (Individualized Written Rehabilitation Plan) or other plan has been completed and other requirements for entrance or reentrance into a rehabilitation program have been met.
(a)
Commencing date of subsistence allowance. The commencing date of an award of subsistence allowance will be determined under the provisions of § 21.322.
(b)
Commencing date of authorization of training and rehabilitation services. The commencing date for authorization of training and rehabilitation services is the same as the effective date for awards for subsistence allowance under provisions of § 21.322, except when:
(1)
The commencing date for authorization of a program of employment services is determined under provisions of § 21.326;
(2)
An earlier commencement date is established in the veteran's plan or the veteran is entitled to earlier induction under § 21.282;
(3)
The veteran elects payment at the educational assistance allowance rate, in which case the commencing date of payment is determined under provisions applicable to commencement of payment under Chapter 30.
(c)
Ending date of subsistence allowance. The ending date of an award for subsistence allowance will be the earliest of the following dates:
(1)
The ending date provided in the veteran's IWRP or other plan;
(2)
The ending date of a period of enrollment as certified by a training or rehabilitation facility;
(3)
The ending date specified in § 21.324.
(d)
Ending date for training and rehabilitation services. The ending date of training and rehabilitation services will be the same as the termination date for subsistence allowance under paragraph (c) of this section, except when:
(1)
The ending date for a period of employment services is determined under provisions of § 21.326;
(2)
A later termination date is established in the veteran's plan;
(3)
A veteran has elected payment at the educational assistance rate paid under Chapter 30. The ending date of the award is determined under regulations applicable to termination of training under Chapter 30.
Notes, amendments, and revision history

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]

§21.322. Commencing dates of subsistence allowance.

38 C.F.R. § 21.322

(a)
General. VA will determine the commencing date of an award or increased award of subsistence allowance under this section. VA will not authorize subsistence allowance for any period prior to the earliest date for which disability compensation is payable or would be payable but for the veteran's receipt of retired pay.
(b)
Entrance or reentrance into vocational rehabilitation, extended evaluation, independent living services. Except in the case of retroactive induction into a rehabilitation program, as provided in § 21.282, the commencing date of an award of subsistence allowance shall be the earlier of:
(1)
The date the facility requires the veteran to report for prescribed activities; or
(2)
The date training or rehabilitation services begin.
(c)
Increases for dependents—
(1)
Dependency exists at the time of entrance or reentrance into a rehabilitation program. A veteran may have one or more dependents on or before the date he or she enters or reenters a rehabilitation program. When this occurs, the following rules apply:
(i)
The effective date of the increase will be the date of entrance or reentrance if:
(A)
VA receives the claim for the increase within one year of the date of entrance or reentrance; and
(B)
VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period of submission of the evidence is adjusted in accordance with § 21.32 of this part.
(ii)
The effective date of the increase will be the date VA receives notice of the dependents existence if:
(A)
VA receives the claim for the increase more than one year after the date of entrance or reentrance; and
(B)
VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part;
(iii)
The effective date of the increase will be the date VA receives all necessary evidence if that evidence is received more than one year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(2)
Dependency arises after entrance or reentrance into a rehabilitation program. If the veteran acquires a dependent after he or she enters or reenters a rehabilitation program, the increase will be effective on the latest of the following dates:
(i)
Date of claim. This term means the following listed in order of their applicability:
(A)
Date of the veteran's marriage, or birth of his or her child, or his or her adoption of a child, if the evidence of the event is received within one year from the date of the event;
(B)
Date notice is received of the dependents's existence if evidence is received within 1 year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(C)
Date VA receives evidence of the dependent's existence if this date is more than one year after VA requested this evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of the time limits, the period for submission of the evidence is adjusted in accordance with § 21.32 of this part.
(ii)
Date dependency arises—
(3)
Increased award not permitted. No increased award for dependency may be paid prior to the date the law permits benefits for dependents generally.
(d)
Correction of military records. In accordance with the facts found, but not earlier than the date the change, correction, or modification was made by the service department, if eligibility of a veteran arises as the result of correction or modification of military records under 10 U.S.C. 1552, or change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other competent military authority.
(e)
Bar to benefits removed by VA. In accordance with the facts found, but not earlier than the date the change was made by VA, if eligibility of a veteran arises as the result of review of the evidence of record regarding the character of discharge by VA, when the veteran's discharge or dismissal was a bar to benefits under 38 U.S.C. 5301.
(f)
Incarcerated veterans.
(1)
Date of release from Federal, State, or local penal institution of a veteran incarcerated for conviction of a felony.
(2)
Earlier of the following dates in the case of a veteran residing in a half-way house or participating in a work-release program as a result of a felony conviction.
(i)
Date of release from the half-way house or work-release program, or
(ii)
Date a veteran becomes obligated to pay part of his or her living expenses.
(g)
Temporary 100 percent award terminated. Date of reduction of a temporary award of disability compensation at the 100 percent rate because of hospitalization.
(h)
Liberalizing laws and VA issues. In accordance with facts found, but not earlier than the date of the act or administrative issue.
Notes, amendments, and revision history

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 52 FR 42113, Nov. 3, 1987; 55 FR 12821, Apr. 6, 1990]

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 52 FR 42113, Nov. 3, 1987; 55 FR 12821, Apr. 6, 1990]

§21.324. Reduction or termination dates of subsistence allowance.

38 C.F.R. § 21.324

(a)
General. The effective date of the reduction of the amount paid or termination of payment of subsistence allowance will be the earliest of the dates specified in this section. If an award is reduced, the reduced rate will be effective the day following the date of termination of the greater benefit.
(b)
Death of a veteran. Date of death, if death occurs while the veteran is in attendance or authorized leave status; otherwise date of last attendance.
(c)
Death of a dependent.
(1)
Before October 1, 1982. Last day of the calendar year in which death occurs, unless the veteran's program is terminated earlier under other provisions.
(2)
After September 30, 1982. Last day of the month in which death occurs unless discontinuance is required at an earlier date under other provisions.
(d)
Divorce—
(1)
Before October 1, 1982. Last day of the calendar year in which divorce occurs, unless the veteran's program is terminated earlier under other provisions.
(2)
After September 30, 1982. Last day of the month in which divorce occurs unless discontinuance is required at an earlier date under other provisions.
(e)
Child—
(1)
Marriage—
(i)
Before October 1, 1982. Last day of the month in which the marriage occurs, unless the veteran's program is terminated earlier under other provisions.
(ii)
After September 30, 1982. Last day of the month in which the marriage occurs, unless discontinuance is required at an earlier date under other provisions.
(2)
Age 18. Day preceding the child's 18th birthday.
(3)
School attendance.
(i)
Last day of the month in which the child ceases attending school; or
(ii)
The day preceding the child's 23rd birthday, whichever is earlier.
(4)
Helplessness. Last day of the month in which 60 days has passed from VA's notice to the payee that the child's helplessness has ceased.
(f)
Interrupted, rehabilitation to the point of employability, independent living program completed, and extended evaluation completed status. Last day of attendance, or approved leave status, whichever is applicable.
(g)
Discontinued. Last day of attendance or approved leave status, whichever is applicable, except as follows:
(1)
If VA places the veteran in “discontinued” status following the veteran's withdrawal from all courses with nonpunitive grades or following his or her completion of all courses with nonpunitive grades and the case manager does not find mitigating circumstances, VA will terminate subsistence allowance effective:
(i)
The first date of the term, or
(ii)
December 1, 1976, whichever is later.
(2)
If VA places the veteran in “discontinued” status following a term in which the grades the veteran receives include both those that count in the grade point average and nonpunitive grades, and the case manager does not find mitigating circumstances:
(i)
VA will terminate subsistence allowance for courses in which the veteran receives nonpunitive grades effective the first day of the term or December 1, 1976, whichever is later.
(ii)
VA will terminate subsistence allowance for courses in which the veteran receives grades that will count in the grade point average effective the veteran's last day of attendance or approved leave status, whichever is applicable.
(h)
Wages or salary received in apprentice or on-job training.
(1)
If the sum of the training wage plus the scheduled subsistence allowance is more than the journeyman wage when the training commences, the subsistence allowance will be decreased by VA effective the first day of the second month following the month in which the veteran enters on-job training.
(2)
Subsequent adjustments will be effective the first day of the second month following the month in which wages or salary changes are made which justify the adjustment under provisions of § 21.266(e).
(i)
Reduction in rate of pursuit of the program. End of month in which reduction occurs, except that if the rate of pursuit is reduced as a result of the veteran's withdrawal from a unit course or courses with nonpunitive grade(s) or as a result of the veteran's completion of a unit course or courses with nonpunitive grade(s) (§ 21.4200(j)), VA will reduce subsistence allowance as follows:
(1)
If it is determined that there are mitigating circumstances:
(i)
Withdrawal with nonpunitive grades— The end of the month or the end of the term in which the veteran withdraws, whichever is earlier; if the reduction occurs at the beginning of the term benefits will be reduced the first day of the term in which the veteran withdraws.
(ii)
Completion with nonpunitive grades. No reduction required.
(2)
If it is determined there are no mitigating circumstances VA will reduce the veteran's subsistence allowance effective the first day of the term in which the veteran withdraws or which the veteran completes with nonpunitive grades. The term mitigating circumstances means circumstances beyond the veteran's or serviceperson's control which prevent him or her from continuously pursuing a rehabilitation program. The following circumstances are representative of those which are considered mitigating.
(i)
An illness of the program participant;
(ii)
An illness or death in the program participant's family;
(iii)
An unavoidable change in the veteran's conditions of employment;
(iv)
An unavoidable geographical transfer resulting from the veteran's employment;
(v)
Immediate family or financial obligations beyond the control of the veteran which are found by VA to require the veteran to suspend pursuit of the rehabilitation program;
(vi)
Discontinuance of the course by the educational institution;
(vii)
In the first instance of withdrawal on or after June 1, 1989 by a program participant from a course or courses with respect to which such veteran has been paid subsistence allowance under the provisions of § 21.260(b), mitigating circumstances shall be considered to exist with respect to courses totaling not more than six semester hours or the equivalent thereof;
(viii)
Difficulties in obtaining child care or changes in such arrangements which are beyond the control of the program participant and which require interruption of the rehabilitation program is order for the participant to provide or arrange for such care.
(j)
Severance of service-connection. Last day of the month in which the severance becomes final.
(k)
Fraud. The later of the following dates:
(1)
The beginning date of the award of subsistence allowance, or
(2)
The day preceding the date of the fraudulent act.
(l)
Error—
(1)
Payee error. Effective date of the award of subsistence allowance or day preceding the act, whichever is later, but not prior to the date the veteran's entitlement ceases, on an erroneous award based on an act of commission or omission by a payee with his or her knowledge.
(2)
Administrative error. Except as provided in paragraph (j) of this section, date of last payment on an erroneous award based solely on administrative error or an error in judgment by a VA employee.
(m)
Treasonable acts, subversive activities. The later of the following dates:
(1)
Beginning date of the award of subsistence allowance, or
(2)
Day preceding the date of commission of the treasonable act or subversive activities for which the veteran is convicted.
(n)
Incarceration in prison or jail—
(1)
Felony conviction. If a veteran's subsistence allowance must be reduced because of incarceration for a felony conviction under provisions of § 21.276, his or her rate of payment will be reduced the later of:
(i)
The date of his or her incarceration in a prison or jail; or
(ii)
The commencing date of his or her award as determined by § 21.322.
(2)
Halfway house or work-release program. The subsistence allowance of a veteran in a halfway house or work release program as a result of conviction of a felony will not be reduced under the provisions of § 21.276 the date on which the Federal Government or a State or local government pays all of the veteran's living expenses.
(o)
Specialized rehabilitation facility. Date payment for room and board by VA begins, reduce the rate paid to the amount payable for dependents.
(p)
Termination of subsistence allowance while hospitalized at VA expense. Date before the beginning date of the increased disability compensation award, which results in a reduced subsistence allowance under the provisions of § 21.266.
Notes, amendments, and revision history

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 51 FR 25525, July 15, 1986; 55 FR 48843, Nov. 23, 1990]

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 51 FR 25525, July 15, 1986; 55 FR 48843, Nov. 23, 1990]

§21.326. Authorization of employment services.

38 C.F.R. § 21.326

(a)
General. Authorization of employment services shall be based upon the services identified and goals established in an IEAP (Individualized Employment Assistance Plan) under provisions of § 21.88. The effective dates for the commencement, or termination of such services will be determined under this section.
(b)
Commencing date. The commencing date authorizing a period of employment services will be the later of:
(1)
The date following completion of the period of rehabilitation to the point of employability; or
(2)
The date of the original IEAP.
(c)
Termination of the authorization of employment services. Authorization for employment services will be terminated the earliest of:
(1)
The last day employment services are provided under the terms of an IEAP when employment services are interrupted, discontinued, or the veteran is rehabilitated;
(2)
The date the authorization is found to be erroneous because of an act of omission or commission by the veteran, or with his or her knowledge;
(3)
The last day of the month in which severance of service connection becomes final;
(4)
The day proceding the date of a fraudulent act;
(5)
The date preceding the commission of a treasonable or subversive act for which the veteran is convicted.
Notes, amendments, and revision history

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

§21.328. Two veteran cases—dependents.

38 C.F.R. § 21.328

If both partners in a marriage are veterans, and if each is receiving either subsistence allowance for a vocational rehabilitation program or an educational assistance allowance under another VA program, each is entitled to receive the additional allowances payable for each other and for their children.
Notes, amendments, and revision history

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

§21.330. Reserved

38 C.F.R. § 21.330

Notes, amendments, and revision history

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

§21.332. Payments of subsistence allowance.

38 C.F.R. § 21.332

(a)
Eligibility. At the end of the month, VA shall pay to an eligible veteran enrolled in a rehabilitation program, subsistence allowance at the rates specified in § 21.260 for the type of program pursued during the month, unless advance payment is approved. VA will continue payments during those intervals described in § 21.270.
(b)
Advance payment criteria. VA will make an advance payment of subsistence allowance only when:
(1)
The veteran specifically requests an advance payment; and
(2)
The educational institution at which the veteran is accepted or enrolled has agreed to, and can carry out, satisfactorily, the provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to:
(i)
Receipt, delivery or return of advance checks; and
(ii)
Certifications of delivery and enrollment.
(c)
Advance payment.
(1)
The amount of advance payment is not to exceed—
(i)
The veteran's subsistence allowance for the month or part of a month in which his or her course will begin; plus
(ii)
The veteran's subsistence allowance for the following month.
(2)
Upon application and completion of arrangements for enrollment of a veteran who meets the criteria for an advance payment, VA shall mail a check payable to the veteran to the institution for delivery to the veteran upon registration.
(3)
An institution shall not deliver an advance payment check to a veteran more than 30 days in advance of commencement of his or her program.
(d)
Certification for advance payment. VA will authorize advance payment upon receipt of the institution's certification of the following information:
(1)
The veteran is eligible for benefits;
(2)
The institution has accepted the veteran or he or she is eligible to continue his or her training;
(3)
The veteran has notified the institution of his or her intention to attend or to reenroll;
(4)
The number of semester or clock hours the veteran will pursue; and
(5)
The beginning and ending dates of the enrollment period.
(e)
Time of advance payment. VA will authorize advance payment only:
(1)
At the beginning of an ordinary school year; or
(2)
At the beginning of any other enrollment period which begins after a break in enrollment of one full calendar month or longer.
(f)
Other payments.
(1)
VA will make all payments other than advance payments at the end of the month for the veteran's training during that month.
(2)
VA may withhold final payment until:
(i)
VA receives certification that the veteran has completed his or her course; and
(ii)
VA makes all necessary adjustments in the veteran's award resulting from that certification.
(g)
Payments for courses which are repeated. VA may pay subsistence allowance to a veteran who repeats a course under conditions described in § 21.132.
Notes, amendments, and revision history

Amendments

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

Amendments

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]

§21.334. Election of payment at the Chapter 30 rate.

38 C.F.R. § 21.334

(a)
Election. When the veteran elects payment of an allowance at the chapter 30 rate, the effective dates for commencement, reduction and termination of the allowance shall be in accordance with §§ 21.7130 through 21.7135 and § 21.7050 under chapter 30.
(b)
Election of payment at the Chapter 30 rate subsequent to induction into a rehabilitation program. Election of payment at the Chapter 30 rate subsequent to induction into training is permissible under provisions of § 21.264 (a) and (b). The effective date of the election is the latest of the following dates:
(1)
The commencing date determined under § 21.7131 in the case of a veteran who has elected payment at the chapter 30 rate; or
(2)
The day following the end of the period for which VA paid tuition, fees or other program charges under this Chapter.
(c)
Reelection of subsistence allowance subsequent to induction. If a veteran reelects subsistence allowance under provisions of § 21.264(b) of this part, the effective date of change is earliest of the following:
(1)
The date following completion of the term, semester, quarter, or other period of instruction in which the veteran is currently enrolled;
(2)
The veteran's Chapter 30 delimiting date;
(3)
The day after exhaustion of Chapter 30 entitlement; or
(4)
The day following the date of a VA determination that failure to approve reelection would prevent the veteran from continuing the rehabilitation program.
(d)
Election or reelection during leave or between periods of instruction—
(1)
Payment at the Chapter 30 rate. If an otherwise eligible veteran elects payment at the Chapter 30 rate during a period between periods of instruction, the effective date of the election shall be the first day of the next period of instruction.
(2)
Subsistence allowance. If an otherwise eligible veteran reelects subsistence allowance during leave or between periods of instruction following election of payment at the Chapter 30 rate, the effective date of the change will be the date of the reelection or the beginning of the next period of training, whichever is to the veteran's benefit.
(e)
Effect of Chapter 34 program termination.
(1)
Since Chapter 34 benefits are not payable beyond December 31, 1989, any previous election of benefits at that rate is terminated as of that date;
(2)
A veteran entitled to chapter 30 benefits based on his or her chapter 34 eligibility as of December 31, 1989, and whose election of chapter 34 rates terminated as of the date under paragraph (e)(1) of this section must, if the individual desires payment at the chapter 30 rate, elect such payment.
Notes, amendments, and revision history

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989, 54 FR 13522, Apr. 4, 1989; 57 FR 57108, Dec. 3, 1992]

Authority

Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.

Source

Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

Amendments

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989, 54 FR 13522, Apr. 4, 1989; 57 FR 57108, Dec. 3, 1992]