[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR3.1]

[Page 145-148]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 3_ADJUDICATION--Table of Contents
 
     Subpart A_Pension, Compensation, and Dependency and Indemnity 
                              Compensation
 
Sec. 3.1  Definitions.

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

                                 General


    (a) Armed Forces means the United States Army, Navy, Marine Corps, 
Air Force, and Coast Guard, including their Reserve components.
    (b) Reserve component means the Army, Naval, Marine Corps, Air 
Force, and Coast Guard Reserves and the National and Air National Guard 
of the United States.
    (c) Reserves means members of a Reserve component of one of the 
Armed Forces.
    (d) Veteran means a person who served in the active military, naval, 
or air service and who was discharged or released under conditions other 
than dishonorable.
    (1) For compensation and dependency and indemnity compensation the 
term veteran includes a person who died in active service and whose 
death was not due to willful misconduct.
    (2) For death pension the term veteran includes a person who died in 
active service under conditions which preclude payment of service-
connected death benefits, provided such person had completed at least 2 
years honorable military, naval or air service, as certified by the 
Secretary concerned. (See Sec. Sec. 3.3(b)(3)(i) and 3.3(b)(4)(i))


(Authority: 38 U.S.C. 501)

    (e) Veteran of any war means any veteran who served in the active 
military, naval or air service during a period of war as set forth in 
Sec. 3.2.
    (f) Period of war means the periods described in Sec. 3.2.
    (g) Secretary concerned means:
    (1) The Secretary of the Army, with respect to matters concerning 
the Army;
    (2) The Secretary of the Navy, with respect to matters concerning 
the Navy or the Marine Corps;
    (3) The Secretary of the Air Force, with respect to matters 
concerning the Air Force;
    (4) The Secretary of Homeland Security, with respect to matters 
concerning the Coast Guard;
    (5) The Secretary of Health and Human Services, with respect to 
matters concerning the Public Health Service; and
    (6) The Secretary of Commerce, with respect to matters concerning 
the Coast and Geodetic Survey, the Environmental Science Services 
Administration, and the National Oceanic and Atmospheric Administration.
    (h) Discharge or release includes retirement from the active 
military, naval, or air service.
    (i) State means each of the several States, Territories and 
possessions of the United States, the District of Columbia, and 
Commonwealth of Puerto Rico.
    (j) Marriage means a marriage valid under the law of the place where 
the parties resided at the time of marriage, or the law of the place 
where the parties resided when the right to benefits accrued.


(Authority: 38 U.S.C. 103(c))


[[Page 146]]


    (k) Service-connected means, with respect to disability or death, 
that such disability was incurred or aggravated, or that the death 
resulted from a disability incurred or aggravated, in line of duty in 
the active military, naval, or air service.
    (l) Nonservice-connected means, with respect to disability or death, 
that such disability was not incurred or aggravated, or that the death 
did not result from a disability incurred or aggravated, in line of duty 
in the active military, naval, or air service.
    (m) In line of duty means an injury or disease incurred or 
aggravated during a period of active military, naval, or air service 
unless such injury or disease was the result of the veteran's own 
willful misconduct or, for claims filed after October 31, 1990, was a 
result of his or her abuse of alcohol or drugs. A service department 
finding that injury, disease or death occurred in line of duty will be 
binding on the Department of Veterans Affairs unless it is patently 
inconsistent with the requirements of laws administered by the 
Department of Veterans Affairs. Requirements as to line of duty are not 
met if at the time the injury was suffered or disease contracted the 
veteran was:
    (1) Avoiding duty by desertion, or was absent without leave which 
materially interfered with the performance of military duty.
    (2) Confined under a sentence of court-martial involving an 
unremitted dishonorable discharge.
    (3) Confined under sentence of a civil court for a felony as 
determined under the laws of the jurisdiction where the person was 
convicted by such court.


(Authority: 38 U.S.C. 105)

    Note: See Sec. 3.1(y)(2)(iii) for applicability of in line of duty 
in determining former prisoner of war status.

    (n) Willful misconduct means an act involving conscious wrongdoing 
or known prohibited action. A service department finding that injury, 
disease or death was not due to misconduct will be binding on the 
Department of Veterans Affairs unless it is patently inconsistent with 
the facts and the requirements of laws administered by the Department of 
Veterans Affairs.
    (1) It involves deliberate or intentional wrongdoing with knowledge 
of or wanton and reckless disregard of its probable consequences.
    (2) Mere technical violation of police regulations or ordinances 
will not per se constitute willful misconduct.
    (3) Willful misconduct will not be determinative unless it is the 
proximate cause of injury, disease or death. (See Sec. Sec. 3.301, 
3.302.)
    (o) Political subdivision of the United States includes the 
jurisdiction defined as a State in paragraph (i) of this section, and 
the counties, cities or municipalities of each.
    (p) Claim--Application means a formal or informal communication in 
writing requesting a determination of entitlement or evidencing a belief 
in entitlement, to a benefit.
    (q) Notice means written notice sent to a claimant or payee at his 
or her latest address of record.
    (r) Date of receipt means the date on which a claim, information or 
evidence was received in the Department of Veterans Affairs, except as 
to specific provisions for claims or evidence received in the State 
Department (Sec. 3.108), or in the Social Security Administration 
(Sec. Sec. 3.153, 3.201), or Department of Defense as to initial claims 
filed at or prior to separation. However, the Under Secretary for 
Benefits may establish, by notice published in the Federal Register, 
exceptions to this rule, using factors such as postmark or the date the 
claimant signed the correspondence, when he or she determines that a 
natural or man-made interference with the normal channels through which 
the Veterans Benefits Administration ordinarily receives correspondence 
has resulted in one or more Veterans Benefits Administration offices 
experiencing extended delays in receipt of claims, information, or 
evidence from claimants served by the affected office or offices to an 
extent that, if not addressed, would adversely affect such claimants 
through no fault of their own.


(Authority: 38 U.S.C. 501(a), 512(a), 5110)

    (s) On the borders thereof means, with regard to service during the 
Mexican border period, the States of Arizona, California, New Mexico, 
and Texas, and

[[Page 147]]

the nations of Guatemala and British Honduras.


(Authority: 38 U.S.C. 101(30))

    (t) In the waters adjacent thereto means, with regard to service 
during the Mexican border period, the waters (including the islands 
therein) which are within 750 nautical miles (863 statute miles) of the 
coast of the mainland of Mexico.


(Authority: 38 U.S.C. 101(30)

    (u) Section 306 pension means those disability and death pension 
programs in effect on December 31, 1978, which arose out of Pub. L. 86-
211; 73 Stat. 432.
    (v) Old-Law pension means the disability and death pension programs 
that were in effect on June 30, 1960. Also known as protected pension, 
i.e. protected under section 9(b) of the Veteran's Pension Act of 1959 
(Pub. L. 86-211; 73 Stat. 432).
    (w) Improved pension means the disability and death pension programs 
becoming effective January 1, 1979, under authority of Pub. L. 95-588; 
92 Stat. 2497.
    (x) Service pension is the name given to Spanish-American War 
pension. It is referred to as a service pension because entitlement is 
based solely on service without regard to nonservice-connected 
disability, income and net worth.


(Authority: 38 U.S.C. 1512, 1536)

    (y) Former prisoner of war. The term former prisoner of war means a 
person who, while serving in the active military, naval or air service, 
was forcibly detained or interned in the line of duty by an enemy or 
foreign government, the agents of either, or a hostile force.
    (1) Decisions based on service department findings. The Department 
of Veterans Affairs shall accept the findings of the appropriate service 
department that a person was a prisoner of war during a period of war 
unless a reasonable basis exists for questioning it. Such findings shall 
be accepted only when detention or internment is by an enemy government 
or its agents.
    (2) Other decisions. In all other situations, including those in 
which the Department of Veterans Affairs cannot accept the service 
department findings, the following factors shall be used to determine 
prisoner of war status:
    (i) Circumstances of detention or internment. To be considered a 
former prisoner of war, a serviceperson must have been forcibly detained 
or interned under circumstances comparable to those under which persons 
generally have been forcibly detained or interned by enemy governments 
during periods of war. Such circumstances include, but are not limited 
to, physical hardships or abuse, psychological hardships or abuse, 
malnutrition, and unsanitary conditions. Each individual member of a 
particular group of detainees or internees shall, in the absence of 
evidence to the contrary, be considered to have experienced the same 
circumstances as those experienced by the group.
    (ii) Reason for detainment or internment. The reason for which a 
serviceperson was detained or interned is immaterial in determining POW 
status, except that a serviceperson who is detained or interned by a 
foreign government for an alleged violation of its laws is not entitled 
to be considered a former POW on the basis of that period of detention 
or internment, unless the charges are a sham intended to legitimize the 
period of detention or internment.
    (3) Central Office approval. The Director of the Compensation and 
Pension Service, VA Central Office, shall approve all VA regional office 
determinations establishing or denying POW status, with the exception of 
those service department determinations accepted under paragraph (y)(1) 
of this section.
    (4) In line of duty. The Department of Veterans Affairs shall 
consider that a serviceperson was forcibly detained or interned in line 
of duty unless the evidence of record discloses that forcible detainment 
or internment was the proximate result of the serviceperson's own 
willful misconduct.
    (5) Hostile force. The term hostile force means any entity other 
than an enemy or foreign government or the agents of either whose 
actions are taken to further or enhance anti-American military, 
political or economic objectives

[[Page 148]]

or views, or to attempt to embarrass the United States.


(Authority: 38 U.S.C. 101(32))

    (z) Nursing home means
    (1) Any extended care facility which is licensed by a State to 
provide skilled or intermediate-level nursing care,
    (2) A nursing home care unit in a State veterans' home which is 
approved for payment under 38 U.S.C. 1742, or
    (3) A Department of Veterans Affairs Nursing Home Care Unit.
    (aa) Fraud:
    (1) As used in 38 U.S.C. 103 and implementing regulations, fraud 
means an intentional misrepresentation of fact, or the intentional 
failure to disclose pertinent facts, for the purpose of obtaining, or 
assisting an individual to obtain an annulment or divorce, with 
knowledge that the misrepresentation or failure to disclose may result 
in the erroneous granting of an annulment or divorce; and


(Authority: 38 U.S.C. 501)

    (2) As used in 38 U.S.C. 110 and 1159 and implementing regulations, 
fraud means an intentional misrepresentation of fact, or the intentional 
failure to disclose pertinent facts, for the purpose of obtaining or 
retaining, or assisting an individual to obtain or retain, eligibility 
for Department of Veterans Affairs benefits, with knowledge that the 
misrepresentation or failure to disclose may result in the erroneous 
award or retention of such benefits.

(Authority: 38 U.S.C. 501)

    Cross-References: Pension. See Sec. 3.3. Compensation. See Sec.  
3.4. Dependency and indemnity compensation. See Sec. 3.5. Preservation 
of disability ratings. See Sec. 3.951. Service-connection. See Sec.  
3.957.

[26 FR 1563, Feb. 24, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 3.1, 
see the List of Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.