[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: 38CFR3.24]

[Page 167-168]
 
            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.  3.24  Improved pension rates--Surviving children.

    (a) General. The provisions of this section apply to children of a 
deceased

[[Page 168]]

veteran not in the custody of a surviving spouse who has basic 
eligibility to receive improved pension. Children in custody of a 
surviving spouse who has basic eligibility to receive improved pension 
do not have separate entitlement. Basic eligibility to receive improved 
pension means that the surviving spouse is in receipt of improved 
pension or could become entitled to receive improved pension except for 
the amount of the surviving spouse's countable annual income or the size 
of the surviving spouse's estate (See Sec.  3.274(c)). Under Sec.  
3.23(d)(5) the countable annual income of a surviving spouse includes 
the countable annual income of each child of the veteran in custody of 
the surviving spouse to the extent the 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.
    (b) Child with no personal custodian or in the custody of an 
institution. In cases in which there is no personal custodian, i.e., 
there is no person who has the legal right to exercise parental control 
and responsibility for the child's welfare (See Sec.  3.57(d)), or the 
child is in the custody of an institution, pension shall be paid to the 
child at the annual rate specified in 38 U.S.C. 1542, as increased from 
time to time under 38 U.S.C. 5312, reduced by the amount of the child's 
countable annual income. 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.
    (c) Child in the custody of person legally responsible for support--
(1) Single child. Pension shall be paid to a child in the custody of a 
person legally responsible for the child's support at an annual rate 
equal to the difference between the rate for a surviving spouse and one 
child under Sec.  3.23(a)(5), and the sum of the annual income of such 
child and the annual income of such person or, the maximum annual 
pension rate under paragraph (b) of this section, whichever is less.
    (2) More than one child. Pension shall be paid to children in 
custody of a person legally responsible for the children's support at an 
annual rate equal to the difference between the rate for a surviving 
spouse and an equivalent number of children (but not including any child 
who has countable annual income equal to or greater than the maximum 
annual pension rate under paragraph (b) of this section) and the sum of 
the countable annual income of the person legally responsible for 
support and the combined countable annual income of the children (but 
not including the income of any child whose countable annual income is 
equal to or greater than the maximum annual pension rate under paragraph 
(b) of this section, or the maximum annual pension rate under paragraph 
(b) of this section times the number of eligible children, whichever is 
less).

(Authority: 38 U.S.C. 1542)

    Cross References: Child. See Sec.  3.57(d). Exclusions from income. 
See Sec.  3.272.

[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 
61 FR 20727, May 8, 1996]