38 C.F.R. § 3.500

General

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The effective date of a rating which results in the reduction or discontinuance of an award will be in accordance with the facts found except as provided in § 3.105. The effective date of reduction or discontinuance of an award of pension, compensation, or dependency and indemnity compensation for a payee or dependent will be the earliest of the dates stated in these paragraphs unless otherwise provided. Where an award is reduced, the reduced rate will be effective the day following the date of discontinuance of the greater benefit.

(Authority: 38 U.S.C. 5112(b))

(a) Except as otherwise provided (38 U.S.C. 5112(a)). In accordance with the facts found.

(b) Error; payee's or administrative (38 U.S.C. 5112(b), (9), (10)). (1) Effective date of award or day preceding act, whichever is later, but not prior to the date entitlement ceased, on an erroneous award based on an act of commission or omission by a payee or with the payee's knowledge.

(2) Except as provided in paragraph (r) of this section, and § 3.501 (e) and (g), date of last payment on an erroneous award based solely on administrative error or error in judgment.

(d) Apportionment (§§ 3.450 series; § 3.556). (1) Except as otherwise provided, date of last payment when reason for apportionment no longer exists.

(2) Where pension was apportioned under § 3.551(c), day preceding date of veteran's release from hospital, unless overpayment would result; date of last payment if necessary to avoid overpayment.

(e) Federal employees' compensation (§ 3.708). The day preceding the date the award of benefits under the Federal Employees' Compensation Act became effective. If children on rolls and surviving spouse has primary title, award to children discontinued same date as surviving spouse's award.

(Authority: 5 U.S.C. 8116)

(f) Contested claims § 3.402(b) and § subpart F of part 20 of this chapter). Date of last payment.

(g) Death (38 U.S.C. 5112 (a), (b))—(1) Payee (includes apportionee). Last day of month before death.

(2) Dependent of payee (includes apportionee):

(i) Death prior to October 1, 1982: last day of the calendar year in which death occurred.

(ii) Death on or after October 1, 1982: last day of the month in which death occurred, except that section 306 and old-law pension reductions or terminations will continue to be effective the last day of the calendar year in which death occurred.

(3) Veteran receiving retirement pay. Date of death.

(h) Dependency of parent (38 U.S.C. 5112; Pub. L. 90-275; §§ 3.4(a), (b)(2), 3.250, 3.551(b) and 3.660). See § 3.660.

(i) Election of Department of Veterans Affairs benefits (§ 3.700 series). Day preceding beginning date of award under other law.

(j) Foreign residence (38 U.S.C. 5308(a)). See § 3.653.

(k) Fraud (38 U.S.C. 6103(a), (d); §§ 3.669 and 3.901). Beginning date of award or day preceding date of fraudulent act, whichever is later.

(l)-(m) [Reserved]

(n) Marriage (or remarriage) (38 U.S.C. 101(3), 5112 (b))—(1) Payee (includes apportionee). Last day of month before marriage.

(2) Dependent of payee (includes apportionee):

(i) Marriage prior to October 1, 1982: last day of the calendar year in which marriage occurred.

(ii) Marriage on or after October 1, 1982: last day of the month in which marriage occurred, except that section 306 and old-law pension reductions or terminations will continue to be effective the last day of the calendar year in which marriage occurred.

(3) Conduct of surviving spouse. Last day of month before inception of relationship.

(Authority: 38 U.S.C. 101(4), 501)

(o) Penal institutions. See § 3.666.

(p) Philippines (38 U.S.C. 107(a)(3); § 3.40). Date of last payment when recognition of service withdrawn.

(q) Renouncement (§ 3.106). Last day of the month in which the renouncement is received.

(r) Service connection (38 U.S.C. 5112(b)(6); § 3.105). Last day of month following 60 days after notice to payee. Applies to reduced evaluation, and severance of service connection.

(s) Treasonable acts or subversive activities (38 U.S.C. 6104 and 6105; §§ 3.902, 3.903). (1) Treasonable acts. Date of the forfeiture decision or date of last payment, whichever is earlier.

(2) Subversive activities. Beginning date of award or day preceding date of commission of subversive activities for which convicted, whichever is later.

(t) Whereabouts unknown (§§ 3.158, 3.656). Date of last payment.

(u) Change in law or Department of Veterans Affairs issue, or interpretation. See § 3.114.

(v) Failure to furnish evidence of continued eligibility. See § 3.652 (a) and (b).

(w) Failure to furnish Social Security number. Last day of the month during which the 60 day period following the date of VA request expires.

(x) Radiation Exposure Compensation Act of 1990 (§ 3.715). (Compensation or dependency and indemnity compensation only.) Last day of the month preceding the month in which payment under the Radiation Exposure Compensation Act of 1990 is issued.

(y) Compensation for certain disabilities due to undiagnosed illnesses (§§ 3.105; 3.317). Last day of the month in which the 60-day period following notice to the payee of the final rating action expires. This applies to both reduced evaluations and severance of service connection.

(Authority: Pub. L. 103-446; 38 U.S.C. 501(a)) (Authority: 38 U.S.C. 8301) Cross Reference:

Failure to return questionnaire. See § 3.661(b).

[26 FR 1596, Feb. 24, 1961] Editorial Note:For Federal Register citations affecting § 3.500, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

Notes of Decisions

Cited in 28 cases (2 in the last 5 years), 1992–2021 · leading case: Preston Lee Dent v. Robert A. McDonald, 27 Vet. App. 362 (Vet. App. 2015).

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Preston Lee Dent v. Robert A. McDonald, 27 Vet. App. 362 (Vet. App. 2015). · cites it 18× “§ 5112 (b)(4)(A) and 38 C.F.R. § 3.500 (c) and § 3.660 apply, and the effective-date provision in section 5112(b)(10) based on VA administrative error does not apply.”

Keith A. Roberts v. Eric K. Shinseki, 23 Vet. App. 416 (Vet. App. 2010). · cites it 8× “Its implementing regulation, 38 C.F.R. § 3.500 , originates from VAR 2586, which in 1943 provided, in relevant part, that "[w]here subsequent to the approval of an award, fraud is shown to have been committed .”

Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). · cites it 4× “3 Stelzel, however, points to 38 C.F.R. § 3.500 (1965) as allegedly supporting his claim.”

Erickson v. West, 13 Vet. App. 495 (Vet. App. 2000). · cites it 4× “§ 5112 (b)(10); see 38 C.F.R. § 3.500 (b)(2) (1999) (effective date of reduction of VA benefits is "date of last payment on an erroneous award based solely on administrative error or error in judgment").”

Sherman E. Morris v. Eric K. Shinseki, 26 Vet. App. 494 (Vet. App. 2014). · cites it 4× “" 38 C.F.R. § 3.500 (2013). Paragraph (g)(1) provides that 15 discontinuance based on the death of a payee takes effect on the last day of the month before death.”

Mamerto D. Valiao v. Anthony J. Principi, 17 Vet. App. 229 (Vet. App. 2003). “§ 5112 (b)(1) (2002); 38 C.F.R. § 3.500 (g) (2002). In its decision, the Board discussed the applicability of the VCAA and concluded that the RO had met or exceeded the expanded notice requirements of the VCAA.”

Jordan v. Brown, 10 Vet. App. 171 (Vet. App. 1997). · cites it 2× “§ 5112 (b); see also 38 C.F.R. § 3.500 (n)(l). Under Mrs. Jordan’s scenario, the fault lies completely with VA, and therefore the last payment she received in 1990 would amount to the effective date of discontinuance of DIC benefits.”

Grovhoug v. Brown, 7 Vet. App. 209 (Vet. App. 1994). · cites it 3× “17 provides for a 60-day response period to a proposed administrative decision to reduce or terminate benefits as the result of an erroneous award based solely on administrative error or error in judgment without limiting the type of benefits to which the paragraph applies ( 38…”

Roberts v. Dept. Of Vets. Affairs, 647 F.3d 1334 (Fed. Cir. 2011). “§ 5112 (b)(9); 38 C.F.R. § 3.500 (b)(1), that only establishes that there has been an overpayment of benefits.”

Disabled Am. Vets. v. Gober, 234 F.3d 682 (Fed. Cir. 2000). “These general procedures, as described in 38 C.F.R. § 3.500 , establish that “[w]here an award is reduced, the reduced rate will be effective the day following the date of discontinuance of the greater benefit.”

Catherine A. Shephard v. Eric K. Shinseki, 26 Vet. App. 159 (Vet. App. 2013). · cites it 2× “The Board stated that, although VA continued to pay the appellant full monthly compensation for almost two years after it learned of her incarceration, VA’s continued payments did not meet “the criteria of sole administrative error” set forth in 38 C.F.R. § 3.500 (b)(2) (2012).…”

210819-179835 (Board of Vet. App. 2021). · cites it 5× “§ 5112 ; 38 C.F.R. § 3.500 . REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran appeals an April 2021 administrative determination of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ), which removed the Veteran's deceased spouse as a dependent…”

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— 38 C.F.R. § 3.500(b)(2) — 1 case

Grovhoug v. Brown, 7 Vet. App. 209 (Vet. App. 1994). “17 provides for a 60-day response period to a proposed administrative decision to reduce or terminate benefits as the result of an erroneous award based solely on administrative error or error in judgment without limiting the type of benefits to which the paragraph applies ( 38…”

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