[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: 38CFR3.23]

[Page 166-167]
 
            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.  3.23  Improved pension rates--Veterans and surviving spouses.

    (a) Maximum annual rates of improved pension. The maximum annual 
rates of improved pension for the following categories of beneficiaries 
shall be the amounts specified in 38 U.S.C. 1521 and 1542, as increased 
from time to time under 38 U.S.C. 5312. Each time there is an increase 
under 38 U.S.C. 5312, the actual rates will be published in the 
``Notices'' section of the Federal Register. (1) Veterans who are 
permanently and totally disabled.


(Authority: 38 U.S.C. 1521(b) or (c))

    (2) Veterans in need of aid and attendance.


(Authority: 38 U.S.C. 1521(d))

    (3) Veterans who are housebound.


(Authority: 38 U.S.C. 1521(e))

    (4) Two veterans married to one another; combined rates.


(Authority: 38 U.S.C. 1521(f))

    (5) Surviving spouse alone or with a child or children of the 
deceased veteran in custody of the surviving spouse.


(Authority: 38 U.S.C. 1541(b) or (c))

    (6) Surviving spouses in need of aid and attendance.


(Authority: 38 U.S.C. 1541(d))

    (7) Surviving spouses who are housebound.


(Authority: 38 U.S.C. 1541(e))

    (b) Reduction for income. The maximum rates of improved pension in 
paragraph (a) of this section shall be

[[Page 167]]

reduced by the amount of the countable annual income of the veteran or 
surviving spouse.


(Authority: 38 U.S.C. 1521, 1541)

    (c) Mexican border period and World War I veterans. The applicable 
maximum annual rate payable to a Mexican border period or World War I 
veteran under this section shall be increased by the amount specified in 
38 U.S.C. 1521(g), as increased from time to time under 38 U.S.C 5312. 
Each time there is an increase under 38 U.S.C. 5312, the actual rate 
will be published in the ``Notices'' section of the Federal Register.


(Authority: 38 U.S.C. 1521(g))

    (d) Definitions of terms used in this section--(1) Dependent. A 
veteran's spouse or child. A veteran's spouse who resides apart from the 
veteran and is estranged from the veteran may not be considered the 
veteran's dependent unless the spouse receives reasonable support 
contributions from the veteran. (Note that under Sec.  3.60 a veteran 
and spouse who reside apart are considered to be living together unless 
they are estranged.) A child of a veteran not in custody of the veteran 
and to whose support the veteran is not reasonably contributing, may not 
be considered the veteran's dependent.


(Authority: 38 U.S.C. 1521(b))

    (2) In need of aid and attendance. As defined in Sec.  3.351(b).
    (3) Housebound. As defined in Sec.  3.351(d)(2), (f). This term also 
includes a veteran who has a disability or disabilities evaluated as 60 
percent or more disabling in addition to a permanent and totally 
disabling condition. See Sec.  3.351(d)(1).
    (4) Veteran's annual income. This term includes the veteran's annual 
income, the annual income of the veteran's dependent spouse, and the 
annual income of each child of the veteran (other than a child for whom 
increased pension is not payable under 38 U.S.C. 1522(b)) in the 
veteran's custody or to whose support the veteran is reasonably 
contributing (to the extent such child's income is reasonably available 
to or for the veteran, unless in the judgment of the Department of 
Veterans Affairs to do so would work a hardship on the veteran.) There 
is a rebuttable presumption that all of such a child's income is 
reasonably available to or for the veteran.


(Authority: 38 U.S.C. 1521 (c), (h))

    (5) Surviving spouse's annual income. This term includes the 
surviving spouse's annual income and the annual income of each child of 
the veteran (other than a child for whom increased pension is not 
payable under 38 U.S.C. 1543(a)(2)) in the custody of the surviving 
spouse to the extent that such child's income is reasonably available to 
or for the surviving spouse, unless in the judgment of the Department of 
Veterans Affairs to do so would work a hardship on the surviving spouse. 
There is a rebuttable presumption that all of such a child's income is 
available to or for the surviving spouse.


(Authority: 38 U.S.C. 1541(c), (g))

    (6) Reasonable availability and hardship. For the purposes of 
paragraphs (d)(4) and (d)(5) of this section, a child's income shall be 
considered ``reasonably available'' when it can be readily applied to 
meet the veteran's or surviving spouse's expenses necessary for 
reasonable family maintenance, and ``hardship'' shall be held to exist 
when annual expenses necessary for reasonable family maintenance exceed 
the sum of countable annual income plus VA pension entitlement. Expenses 
necessary for reasonable family maintenance include expenses for basic 
necessities (such as food, clothing, shelter, etc.) and other expenses, 
determined on a case-by-case basis, which are necessary to support a 
reasonable quality of life.

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

    Cross References: Improved pension. See Sec.  3.1(w). Child. See 
Sec.  3.57(d). Definition of living with. See Sec.  3.60. Exclusions 
from income. See Sec.  3.272.

[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 
53 FR 23235, June 21, 1988]