(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]