Code of Federal Regulations (alpha)

CFR /  Title 38  /  Part 18  /  Sec. 18.550 Exhaustion of administrative remedies.

(a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if:

(1) 180 days have elapsed since the complainant filed the complaint and VA has made no finding with regard to the complaint; or

(2) VA issues any finding in favor of the recipient.

(b) If VA fails to make a finding within 180 days or issues a finding in favor of the recipient, VA will:

(1) Promptly advise the complainant of this fact; and

(2) Advise the complainant of his or her right to bring a civil action for injunctive relief; and

(3) Inform the complainant that:

(i) The complainant may bring a civil action only in a United States district court for the district in which the recipient is found or transacts business;

(ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but the complainant must demand these costs in the complaint;

(iii) Before commencing the action, the complainant shall give 30 days notice by registered mail to the Secretary, the Attorney General of the United States, and the recipient;

(iv) The notice must state: The alleged violation of the Act; the relief requested; the court in which the complainant is bringing the action; and, whether or not attorney's fees are demanded in the event the complainant prevails; and

(v) The complainant may not bring action if the same alleged violations of the Act by the same recipient is the subject of a pending action in any court of the United States. (Authority: 42 U.S.C. 6101-6107)

Sec. Appendix A to Subpart E of Part 18--Statutory Provisions to Which

This Subpart Applies

1. Approval of educational institutions (38 U.S.C. 104).

2. Space and office facilities for representatives of State employment services (38 U.S.C. 7725(1)).

3. Medical care for survivors and dependents of certain veterans (38 U.S.C. 1713).

4. Transfers for nursing home care; adult day health care (38 U.S.C. 1720).

5. Treatment and rehabilitation for alcohol or drug dependence or abuse disabilities (38 U.S.C. 1720A).

6. Payments to State Homes (38 U.S.C. 1741-1743).

7. Aid to States for establishment, expansion, and improvement of veterans' cemeteries (38 U.S.C. 2408).

8. Vocational Rehabilitation; Post-Vietnam Era Veterans' Educational Assistance; Survivors' and Dependents' Educational Assistance; and Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34, 35 and 36 respectively).

9. Space and office facilities for representatives of recognized national organizations (38 U.S.C. 5902(a)(2)).

10. Department of Veterans Affairs Health Professional Scholarship Program (38 U.S.C. 7601-7655).

11. State Home Facilities for Furnishing Domiciliary, Nursing Home and Hospital Care (38 U.S.C. 8131-8137).

12. Sharing of Medical Facilities, Equipment and Information (38 U.S.C. 8151-8157).

13. Assistance in Establishing New State Medical Schools; Grants to Affiliated Medical Schools; Assistance to Health Manpower Training Institutions (38 U.S.C. Chapter 82).

14. Emergency Veterans' Job Training (Pub. L. 98-77, 97 Stat. 443-452).

Sec. Appendix B to Subpart E of Part 18--List of Age Distinctions

Contained in Statutes and Regulations Governing Federal Financial

Assistance of the Department of Veterans Affairs

Section 90.31(f) of the governmentwide regulations (45 CFR part 90) requires each Federal agency to publish an appendix to its final regulations containing a list of age distinctions in Federal statutes and regulations affecting financial assistance administered by the agency. This appendix is VA's list of age distinctions contained in Federal statutes and VA regulations which:

(1) Provide benefits or assistance to persons based upon age; or

(2) Establish criteria for participation in age-related terms; or

(3) Describe intended beneficiaries or target groups in age-related terms.

Appendix B deals only with VA's programs of financial assistance covered by the Age Discrimination Act. It does not list age distinctions used by VA in its direct assistance programs, such as veterans' compensation. Also, this appendix contains only age distinctions in Federal statutes and VA regulations in effect on January 1, 1985.

This appendix has two sections: A list of age distinctions in Federal statutes, and a list of age distinctions in VA regulations. The first column contains the name of the program; the second column has the statute name and U.S. Code citation for statutes, or the regulation name and Code of Federal Regulations citation for regulations; the third column contains the section number of the statute or regulation and the description of the age distinction; and the fourth column cites the Catalog of Federal Domestic Assistance number for the program(s) affected where it is available.

Age Distinctions in Statutes Governing Federal Financial Assistance Programs of the Department of Veterans

Affairs----------------------------------------------------------------------------------------------------------------

Program Statute Section and Age Distinction CFDA----------------------------------------------------------------------------------------------------------------Veterans' Benefits...................... Section 101 of the Section 101(4)(A) defines the

Veterans' Benefits Act of term ``child'' for the purposes

1957, as amended; 38 of Title 38, U.S.C. (except for

U.S.C. 101. chapter 19 and section 8502(b)

of Title 38) as ``a person who

(i) who is

under the age of eighteen

years; (ii) who, before

attaining the age of eighteen

years, became permanently

incapable of self-support; or

(iii) who, after attaining the

age of eighteen years and until

completion of education or

training (but not after

attaining the age of twenty-

three years), is pursuing a

course of instruction at an

approved educational

institution; and who is a

legitimate child, a legally

adopted child, a stepchild who

is a member of a veteran's

household or was a member at

the time of the veteran's

death, or an illegitimate child

but, as to the alleged father,

only if acknowledged in writing

signed by him, or if he has

been judicially ordered to

contribute to the child's

support or has been, before his

death, judicially decreed to be

the father of such child, or if

he is otherwise shown by

evidence statisfactory to the

Secretary to be the father or

such child. . . .''.

Section 101(4)(B) provides that

for the purposes of section

101(4)(A) of Title 38, in the

case of an adoption under the

laws of any jurisdiction other

than a State, a person residing

outside any of the States shall

not be considered a legally

adopted child of a veteran

during the lifetime of that

veteran, unless, among other

things, such a person was less

than eighteen years of age at

the time of the adoption.Approval of Educational Institutions.... Section 104 of the Section 104(a) authorizes the

Veterans' Benefits Act of Secretary to approve or

1957, as amended, 38 disapprove an educational

U.S.C. 104. institution for the purpose of

determining whether or not

benefits are payable under

Title 38, U.S.C. (except

chapter 15 of title 38) for a

child over the age of eighteen

years and under the age of

twenty-three years who is

attending a school, college,

academy, seminary, technical

institution, university, or

other educational institution.

Section 104(b) provides that the

Secretary may not approve an

educational institution under

section 104 of Title 38, unless

the institution has agreed to

report the termination of

attendance of any child. If the

educational institution fails

to report any such termination

promptly, the approval of the

Secretary shall be withdrawn.Civilian Health and Medical Program of Section 103(b) of the Section 1713(a) authorizes the 64.009

the Department of Veterans Affairs Veterans Health Care Secretary to provide medical

(CHAMPA). Expansion Act of 1973, as care to: ``(1) The spouse or

amended; 38 U.S.C. 1713. child of a veteran who has a

total disability, permanent in

nature, resulting from a

service-connected disability,

(2) the surviving spouse or

child of a veteran who (A) died

as a result of a service-

connected disability, or (B) at

the time of death had a total

disability permanent in nature,

resulting from a service-

connected disability, and (3)

the surviving spouse or child

of a person who died in the

active military, naval, or air

service in the line of duty and

not due to such person's own

misconduct, who are not

otherwise eligible for medical

care under Chapter 55 of Title

10, U.S.C. (CHAMPUS).

Section 1713(c) provides that

for the purposes of this

program, ``a child between the

ages of eighteen and twenty-

three (1) who is eligible for

benefits under subsection (a)

of this section, (2) who is

pursuing a full-time course of

instruction at an educational

institution, approved under

Chapter 36 of this title, and

(3) who while pursuing such

course of instruction, incurs a

disabling illness or injury . .

. which results in such child's

inability to continue or resume

such child's chosen program of

education . . . shall remain

eligible for benefits under

this section until the end of

the six-month period beginning

on the date the disability is

removed, the end of the two-

year period beginning on the

date of the onset of the

disability, or the twenty-third

birthday of the child,

whichever occurs first''.VA Hospital, Domiciliary or Nursing Home Section 510 of the Section 1710 authorizes the 64.009

Care. Veterans' Benefits Act of Secretary, within the limits of 64.010

1957, amended; 38 U.S.C. VA facilities, to furnish 64.015

1710. hospital care or nursing home 64.016

care. Among the persons

eligible for such care are

veterans with a nonservice-

connected disability if they

are sixty-five years of age or

older.Post-Vietnam Era Veterans' Educational Post Vietnam Era Veterans' Section 3201 states that the 64.120

Assistance. Educational Act of 1977, purpose of Chapter 32 of Title

as amended; U.S.C. Chapter 38, U.S.C. is: ``(1) To provide

32. educational assistance to those

men and women who enter the

Armed Forces after December 31,

1976, (2) to assist young men

and women in obtaining an

education they might not

otherwise be able to afford,

and (3) to promote and assist

the all volunteer military

program of the United States by

attracting qualified men and

women to serve in the Armed

Forces''.Veterans' Educational Assistance........ Section 2 of the Veterans' Section 3451 states that the 64.111

Readjustment Benefits Act education program created by

of 1966, amended; 38 this chapter is for the purpose

(1) Enhancing and

making more attractive service

in the Armed Forces of the

United States, (2) extending

the benefits of higher

education to qualified and

deserving young persons who

might not otherwise be able to

afford such an education, (3)

providing vocational

readjustment and restoring lost

educational opportunities to

those service men and women

whose careers have been

interrupted or impeded by

reason of active duty after

January 31, 1955, and (4)

aiding such persons in

attaining the vocational and

educational status which they

might normally have aspired to

and obtained had they not

served their country''.

Section 3492(b) authorizes the

Secretary to pay to an eligible

veteran receiving tutorial

assistance pursuant to section

3492(a) of this chapter, the

cost of such tutorial

assistance, subject to certain

limits, upon certification by

the educational institution

that `` . . . (2) the tutor

chosen to perform such

assistance is qualified and is

not the eligible veteran's

parent, spouse, child (whether

or not married or over eighteen

years of age), brother, or

sister; and (3) the charges for

such assistance do not exceed

the customary charges for such

tutorial assistance''.

Survivors' and Dependents' Educational War Orphans' Educational Section 3500 states that ``the 64.117

Assistance. Assistance Act of 1956, as educational program established

amended; 38 U.S.C. Chapter by this chapter is for the

35. purpose of providing

opportunities for education to

children whose education would

otherwise be impeded or

interrupted by reason of the

disability or death of a parent

from a disease or injury

incurred or aggravated in the

Armed Forces after the

beginning of the Spanish-

American War, and for the

purpose of aiding such children

in attaining the educational

status which they might have

aspired to and attained but for

the disability or death of such

parent. The Congress further

declares that the educational

program extended to the

surviving spouses of veterans

who died of service-connected

total disabilities and to

spouses of veterans with a

service-connected total

disability permanent in nature

is for the purpose of assisting

them in preparing to support

themselves and their families

at a standard of living level

which the veteran, but for the

veteran's death or service

disability, could have expected

to provide for the veteran's

family''.

Section 3501 defines the term

``eligible person'' as: ``(A) a

(i) died

of a service-connected

disability, (ii) has a total

disability permanent in nature

resulting from a service-

connected disability, or who

died while a disability so

evaluated was in existence or

(iii) at the time of

application for benefits under

this chapter is a member of the

Armed Forces serving on active

duty listed, pursuant to

section 556 of Title 37

[U.S.C.] and regulations issued

thereunder, by the Secretary

concerned in one or more of the

following categories . . . for

a total of ninety days: (A)

missing in action, (B) captured

in line of duty by a hostile

force, or (C) forcibly detained

or interned in line of duty by

a foreign government or power,

. . .'' Subparagraph (a)(2) of

this section provides that the

term ``child'' includes

individuals who are married and

individuals who are above the

age of twenty-three years.

Section 3512 establishes periods

of eligibility. Provides that

the educational program to

which an eligible child within

the meaning of this chapter is

entitled to may be afforded,

``. . . during the period

beginning on the person's

eighteenth birthday, or on the

successful completion of the

person's secondary schooling,

whichever first occurs, and

ending on the person's twenty-

sixth birthday, except that--

(1) if the person is above the

age of compulsory school

attendance under applicable

State law, and the Secretary

determines that the person's

best interests will be served

thereby, such period may begin

before the person's eighteenth

birthday; (2) if the person has

a mental or physical handicap,

and . . . the person's best

interests will be served by

pursuing a program of special

restorative training or a

specialized course of

vocational training approved

under section 3536 of this

title, such period may begin

before the person's fourteenth

birthday; (3) if the Secretary

finds that the parent from whom

eligibility is derived has a

service-connected total

disability permanent in nature,

or if the death of the parent

from whom eligibility is

derived occurs, after the

eligible person's eighteenth

birthday but before the

person's twenty-sixth birthday,

then (unless paragraph (4)

applies) such period shall end

8 years after, whichever date

last occurs: (A) the date on

which the Secretary first finds

that the parent from whom

eligibility is derived has a

service-connected total

disability permanent in nature,

or (B) the date of death of the

parent from whom eligibility is

derived; (4) if the person

serves on duty with the Armed

Forces as an eligible person

after the person's eighteenth

birthday but before the

person's twenty-sixth birthday,

then such period shall end 8

years after the person's first

discharge or release from such

duty with the Armed Forces . .

. in no event shall such period

be extended beyond the person's

thirty-first birthday by reason

of this paragraph; and (5)(A)

if the person becomes eligible

by reason of the provisions of

section 3501(a)(1)(A)(ii) of

this title after the person's

eighteenth birthday but before

the person's twenty-sixth

birthday, then (unless clause

(4) of this section applies)

such period shall end eight

years after the date on which

the person becomes eligible by

reason of such provisions, but

in no event shall such period

be extended beyond the person's

thirty-first birthday by reason

of this clause. . . .''.

Section 3513 provides that the

parent or guardian of a person

or the eligible person (if such

person has attained legal

majority) for whom the

educational assistance is

sought under Chapter 35 shall

submit an application to the

Secretary, which shall be in

such form and contain such

information as the Secretary

shall prescribe.

Section 3562 provides that the

commencement of a program of

education or special

restorative training under

Chapter 35 shall be a bar,

``(1) to subsequent payments of

compensation, dependency and

indemnity compensation, or

pension based on a death of a

parent to an eligible person

over the age of eighteen by

reason of pursuing a course in

an educational institution, or

(2) to increased rates, or

additional amounts of

compensation, dependency and

indemnity compensation, or

pension because of such a

person whether eligibility is

based upon the death or upon

the total permanent disability

of the parent''.

Section 3563 states that ``The

Secretary shall notify the

parent or guardian of each

eligible person as defined in

section 3501(a)(1)(A) of this

title of the educational

assistance available to such

person under Chapter 35. Such

notification shall be provided

not later then the month in

which such eligible person

attains such person's

thirteenth birthday or as soon

thereafter as feasible''.----------------------------------------------------------------------------------------------------------------

Age Distinctions in Regulations Governing Federal Financial Assistance Programs of the Department of Veterans

Affairs----------------------------------------------------------------------------------------------------------------

Program Regulation Section and Age Distinction CFDA----------------------------------------------------------------------------------------------------------------Veterans' Benefits...................... Adjudication (38 CFR part Section 3.57 defines the term

3). ``child'' of a veteran as, ``.

. . an unmarried person who is

a legitimate child, a child

legally adopted before the age

of 18 years, a stepchild who

acquired that status before the

age of 18 years and who is a

member of the veteran's

household or was a member of

the veteran's household at the

time of the veteran's death, or

an illegitimate child; and (i)

who is under the age of 18

years; or (ii) who, before

reaching the age of 18 years,

became permanently incapable of

self-support; or (iii) who,

after reaching the age of 18

years and until completion of

education or training (but not

after reaching the age of 23

years) is pursuing a course of

instruction at an approved

educational institution. (2)

For the purposes of determining

entitlement of benefits based

on a child's school attendance,

the term ``child'' of the

veteran also includes the

following unmarried persons:

(i) A person who was adopted by

the veteran between the ages of

18 or 23 years. (ii) A person

who became a stepchild of a

veteran between the ages of 18

or 23 years and who is a member

of the veteran's household at

the time of the veteran's

death. . . .''Survivors' and Dependents' Educational Adjudication (38 CFR part Section 3.807(d) sets forth 64.117

Assistance. 3). basic eligibility criteria for

the program of educational

assistance under 38 U.S.C.

Chapter 35. Defines the term

``child'' as the son or

daughter of a veteran who meets

the requirements of 38 CFR

3.57, except as to age or

marital status.

Survivors' and Dependent's Section 21.3021 describes

Educational Assistant beneficiaries of the program.

Under 38 U.S.C. Chapter 35 Paragraph (a) defines the term

(38 CFR part 21, subpart ``eligible person'' as, ``(1) A

C). child of a: (i) Veteran who

died of a service-connected

disability. . . .'' Paragraph

(b) defines the term ``child''

as a son or daughter of a

veteran as defined in 38 CFR

3.807(d).

Section 21.3023 states that:

``(a) Child; age 18. A child

who is eligible for educational

assistance and who is also

eligible for pension,

compensation dependency and

indemnity compensation based on

school attendance must elect

whether he or she will receive

educational assistance or

pension, compensation or

dependency and indemnity

(1) An election

of education assistance either

before or after the age of 18

years is a bar to subsequent

payment or increased rates or

additional amounts of pension,

compensation or dependency and

indemnity compensation on

account of a child based on

school attendance on or after

the age of 18 years. . . . (2)

Payment of pension,

compensation or dependency and

indemnity compensation to or on

account of a child after his or

her 18th birthday does not bar

subsequent payments of

educational assistance. . . .

(b) Child; under 18 or

helpless. Educational

assistance allowance or special

restorative training allowance

may generally be paid

concurrently with pension,

compensation or dependency and

indemnity compensation for a

child under the age of 18 years

or for a helpless child based

on the service of one or more

parents. Where, however,

entitlement is based on the

death of more than one parent

in the same parental line,

concurrent payments in two or

more cases may not be

authorized if the death of one

such parent occurred on or

after June 9, 1960. In the

latter cases, an election of

educational assistance and

pension, compensation or

dependency and indemnity

compensation in one case does

not preclude a reelection of

benefits before attaining age

18 or while helpless based on

the service of another parent

in the same parental line. . .

.''

Section 21.3040 sets forth

criteria for the commencement

and termination of the program

of education or special

restorative training for an

eligible child under 38 U.S.C.

Chapter 35. Paragraph (a) of

this section provides that a

program of education or special

restorative training may not be

afforded prior to the eligible

persons' 18th birthday or the

completion of secondary

schooling, whichever is

earlier, unless it is

determined through counseling

that the best interests of the

eligible person will be served

by entering training at an

earlier date and the eligible

person has passed: (1)

Compulsory school attendance

age under State law; or (2) his

or her 14th birthday and due to

physical or mental handicap may

benefit by special restorative

or specialized vocational

training. Paragraph (c) of this

section provides that no person

is eligible for educational

assistance who reached his or

her 26th birthday on or before

the effective date of a finding

of permanent total service-

connected disability, or on or

before the date the veteran's

death occurred, or on or before

the 91st day of listing by the

Secretary concerned of the

member of the Armed Forces or

whose service eligibility is

claimed as being is one of the

missing categories identified

in 38 CFR 21.3021(a) (1)(iii)

and (3)(ii). Paragraph (d)

provides that no person is

eligible for educational

assistance beyond his or her

31st birthday, except in

certain exceptional cases.

Section 21.3041 sets forth

periods of eligibility for an

eligible child. Paragraph (a)

of this section provides the

basic beginning date for the

educational assistance as the

person's 18th birthday or

successful completion of

secondary schooling, whichever

occurs first. Paragraph (b)

authorizes certain exceptions

to the basic beginning date,

if: (1) A person has passed

compulsory school attendance

under applicable State law, or

(2) has passed his or her 14th

birthday and has a physical or

mental handicap. Paragraph (c)

provides the basic ending date

as the person's 26th birthday.

Paragraphs (d) and (e) set

forth criteria for modifying or

extending the ending date.

Administration of Section 21.3300 provides that VA

Educational Benefits; 38 may prescribe special

U.S.C. Chapter 34, 35, and restorative training for the

36 (38 CFR part 21, purpose of enabling an eligible

subpart D). child to pursue a program of

education, special vocational

program, or other appropriate

goal, where needed to overcome

or lessen the effects of a

physical or mental disability.

Section 21.4102(a) requires VA

to provide counseling for the

purpose set forth in 38 CFR

21.4100 to an eligible child

when: (1) The eligible child

may require specialized

vocational or special

restorative training, or (2)

the eligible child has reached

compulsory school attendance

age under State law, but has

neither reached his or her 18th

birthday nor completed

secondary schooling, or (3) if

requested by the eligible child

or his or her parent or

guardian for the purpose of

preparing an educational plan.

Section 21.4139(b) provides that

VA will make payment of

educational assistance under 38

U.S.C. Chapter 35 to the

eligible person if: (1) He or

she has attained majority and

has no known legal disability

or (2) is in the eligible

person's best interests, and

there is no reason not to

designate the eligible person

as payee. VA may pay minors

under this provision.

Section 21.4141 provides that

payment of educational

assistance allowance under 38

U.S.C. Chapter 35 will be

subject to offsets of amounts

of pension, compensation, or

dependency and indemnity

compensation paid over the same

period on behalf of a child

based on school attendance.VA Hospital, Domiciliary or Nursing Home Eligiblity for hospital, Section 17.47(e) provides that 64.009

Care. domiciliary or nursing within the limits of VA 64.010

home care of persons facilities, hospital or nursing 64.015

discharged or released home care may be provided to 64.016

from active military, any veteran with a nonservice-

naval, or air service (38 connected disability if such a

CFR 17.47). veteran is 65 years of age or

older.

Civilian Health and Medical Program of Medical Care for Survivors Section 17.54 states that 64.009

the Department of Veterans Affairs and Dependents of Certain medical care may be provided

(CHAMPA). Veterans (38 CFR 17.54). for: ``(1) The spouse or child

of a veteran who has a total

disability, permanent in

nature, resulting from a

service-connected disability,

and (2) the surviving spouse or

(a)

died as a result of a service-

connected disability, or (b) at

the time of death had a total

disability, permanent in nature

resulting from a service-

connected disability and--(3)

the surviving spouse or child

of a person who died in the

active military, naval or air

service . . . Who are not

otherwise eligible for medical

care as beneficiaries of the

Armed Forces under the

provisions of Chapter 55 of

Title 10, United States Code

(CHAMPUS) . . . and (4) An

eligible child who is pursuing

a full-time course of

instruction approved under 38

U.S.C. Chapter 36, and who

incurs a disabling illness or

injury while pursuing such

course; . . . shall remain

eligible for medical care

until: (a) The end of the 6-

month period beginning on the

date the disability is removed,

or (b) the end of the 2-year

period beginning on the date of

the onset of the disability; or

(c) the 23d birthday of the

child, whichever occurs first.

. . .''Veterans' Educational Assistance........ Administration of Section 21.4135(d) sets forth

Educational Benefits; 38 the following dates for the

U.S.C. Chapters 34, 35, discontinuance of the

and 36 (38 CFR part 21, educational assistance

subpart D). allowance provided for a

dependent child, under Chapter

(1)

Last day of the in calendar

year in which marriage occurred

unless discontinuance is

required at an earlier date

under other provisions. (2) Age

18. Day preceding 18th

birthday. (3) School

attendance. Last day of month

in which 23rd birthday,

whichever is earlier. (4)

Helplessness ceased. Last day

of month school attendance

ceased or day preceding

following 60 days after notice

to payee that helplessness has

ceased.''

Section 21.4136 sets forth

monthly rates for the payment

of educational assistance

allowance under 38 U.S.C.

Chapter 34. Paragraph (f)

defines the term ``dependent''

as a spouse, child or dependent

parent who meets the

definitions of relationship

specified in 38 CFR 3.50, 3.57

and 3.59.---------------------------------------------------------------------------------------------------------------- [50 FR 34133, Aug. 23, 1985, as amended at 76 FR 34000, June 10, 2011]