Veterans and Dependents Education: Topping-Up Tuition Assistance; Licensing and Certification Tests; Duty To Assist Education Claimants, 16962-16983 [E7-5842]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 72, Number 65 (Thursday, April 5, 2007)]
[Rules and Regulations]
[Pages 16962-16983]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5842]



[[Page 16961]]

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Part IV





Department of Veterans Affairs





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38 CFR Part 21



Veterans and Dependents Education: Topping-Up Tuition Assistance; 
Licensing and Certification Tests; Duty To Assist Education Claimants; 
Final Rule

Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Rules 
and Regulations

[[Page 16962]]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AK80


Veterans and Dependents Education: Topping-Up Tuition Assistance; 
Licensing and Certification Tests; Duty To Assist Education Claimants

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts this final rule 
to amend the regulations governing various aspects of the education 
program VA administers. The final rule includes provisions for the 
payment of educational assistance under Survivors' and Dependents' 
Educational Assistance, the Post-Vietnam Era Veterans' Educational 
Assistance Program, and the Montgomery GI Bill--Active Duty (MGIB) for 
the cost of taking tests for licensure or certification; provisions for 
the payment of MGIB to individuals on active duty for the difference 
between the portion of tuition and expenses covered by off-duty 
military tuition assistance programs and the actual charges made by 
educational institutions; provisions regarding VA's duty to assist 
claimants filing claims for educational assistance under the education 
programs VA administers; and nonsubstantive changes for the purpose of 
clarity, technical changes, or restatements of statutory provisions.

DATES: Effective Date: This final rule is effective May 7, 2007.
    Applicability Dates: The provisions that apply to approval of 
licensing or certification tests or the payment of educational 
assistance for the cost of taking such tests are applied retroactively 
to March 1, 2001, as payment for such tests is authorized for tests 
taken on or after March 1, 2001, in the Veterans Benefits and Health 
Care Improvement Act of 2000.
    The provisions concerning payment under the MGIB for ``tuition 
assistance top-up'' are applied retroactively to October 30, 2000, the 
date of enactment of the Floyd D. Spence National Defense Authorization 
Act for Fiscal Year 2001.
    The provisions concerning VA's duty to assist claimants filing 
claims for educational assistance apply to claims filed on or after 
November 9, 2000, the date of enactment of the Veterans Claims 
Assistance Act of 2000.

FOR FURTHER INFORMATION CONTACT: Lynn M. Nelson, Education Advisor, 
Education Service, Veterans Benefits Administration, Department of 
Veterans Affairs (225C), 810 Vermont Avenue, NW., Washington, DC 20420, 
(202) 273-7187.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on February 22, 2006 (71 FR 9196), VA published a proposed 
rule proposing to amend subparts B, D, G, and K of 38 CFR part 21, 
regarding payment of educational assistance for the cost of licensure 
or certification tests; payment of MGIB educational assistance to pay 
the difference between the amount of tuition assistance paid by the 
military and the actual charges made by the educational institution; 
and the timing and the scope of assistance VA will provide to claimants 
under the education programs VA administers who file substantially 
complete applications for benefits, or who attempt to reopen previously 
denied claims; and various nonsubstantive changes. Some of the 
provisions in the proposed rule contained proposed collections of 
information.
    Interested persons were given 60 days to submit comments. VA 
received one comment from a veterans' service organization concerning a 
provision in proposed 38 CFR 21.1031(b)(3). In 38 CFR 21.1031, ``VA 
responsibilities when a claim is filed,'' VA proposed to revise Sec.  
21.1031(b), with the heading ``VA has a duty to notify claimants of 
necessary information or evidence.'' Proposed Sec.  21.1031(b)(1) 
includes provisions concerning the contents of such notice and the 
circumstances under which VA has the responsibility to provide such 
notice to a claimant for educational assistance benefits. Proposed 
Sec.  21.1031(b)(2) includes provisions concerning a one-year time 
period for providing the information and evidence that the notice 
informs the claimant that the claimant must provide, and authorizing VA 
after that period to adjudicate the claim based on the information and 
evidence in the file.
    The organization's comment concerned the proposed provision in 
Sec.  21.1031(b)(3) that would permit VA, after providing notice to a 
claimant under proposed Sec.  21.1031(b)(1), to decide a claim for 
educational assistance 30 days after the request for information or 
evidence if the claimant has not responded. The comment contended that 
Sec.  21.1031 ``should allow 60 days for response, similar to a 
compensation or pension claim.'' The comment stated that ``[w]e feel 
there is no obvious reason to require a veteran or organization to 
respond so quickly * * *.''
    As noted in the preamble to the proposed rule, VA issued a final 
rule in the Federal Register of August 29, 2001 (66 FR 45620) amending 
38 CFR part 3 to carry out provisions of the Veterans Claims Assistance 
Act of 2000 with respect to claims for benefits that are governed by 38 
CFR part 3 (including compensation, pension, dependency and indemnity 
compensation, burial benefits, monetary benefits ancillary to those 
benefits, and special benefits) (66 FR 45629). Proposed Sec.  
21.1031(b)(3) sets out the same 30-day provision as does current 38 CFR 
3.159(b)(1), which was adopted in the 2001 final rule for 38 CFR part 
3: that if the claimant has not responded to the request within 30 
days, VA may decide the claim before the expiration of the one-year 
period in which the claimant may respond. Under both Sec.  3.159(b)(1) 
and the proposed Sec.  21.1031(b)(3), if the claimant subsequently 
submits the specified evidence or information within one year of VA's 
request, VA must readjudicate the claim.
    As noted in the preamble to the final rule that adopted the 30-day 
period under Sec.  3.159(b)(1), a claimant may delay VA action beyond 
the 30 days by responding with a request that VA wait beyond the 30-day 
period while the claimant attempts to gather evidence (66 FR 45623). 
This would be true under the similar language of proposed Sec.  
21.1031(b)(3).
    Under Sec.  3.159, it is within VA's discretion to issue a decision 
after the time period specified in the regulation, or specified in a 
notice to a claimant, as the time after which VA may decide a claim. As 
indicated in the comment comparing the 30-day period in proposed Sec.  
21.1031(b)(3) to a 60-day period for compensation and pension claims, 
VA has stated in notices sent under Sec.  3.159 to claimants for 
compensation or pension benefits that VA may decide the claim if the 
claimant did not respond within 60 days.
    VA has concluded that, under the circumstances concerning the 
claims for education benefits to which Sec.  21.1031 applies, it is 
appropriate for this final rule to adopt the 30-day time period that VA 
proposed for Sec.  21.1031(b)(3), even if, as the comment noted, a 
different period may be used for certain other benefits administered by 
VA.
    Unlike the various types of information and evidence that are 
generally needed in substantiating a service-connected disability for 
compensation purposes or a qualifying disability and financial need for 
pension, substantiating eligibility under one of the various 
educational assistance programs VA administers generally requires only 
proof of military service.

[[Page 16963]]

    In addition, VA generally has needed more than the 30-day time 
period in the current Sec.  3.159 before VA would have been able to 
issue a determination on a compensation and pension claim. In contrast, 
in most instances, prior to or within a 30-day period from the date 
that VA provides notice requesting additional information or evidence 
from a claimant under an educational assistance program, VA has the 
necessary information available to determine a claimant's eligibility 
under an educational assistance program. However, VA might not have 
sufficient information to determine an individual's personal monthly 
rate of educational assistance (education benefit). For example, under 
the MGIB program, the October 1, 2005, full-time rate of basic 
educational assistance for an individual who served three continuous 
years or more on active duty is $1,034. Some individuals qualify for a 
MGIB full-time rate that exceeds $1,034 due to: voluntary contributions 
they made while serving on active duty; entitlement to the Army or Navy 
College Fund; or by serving in the Selected Reserve in a critical 
military occupation or unit. If VA requested information from a 
claimant to substantiate his or her entitlement to a rate exceeding 
$1,034, and the claimant did not provide that information within 30 
days, VA could make a decision based on the evidence of record and 
award benefits. Thus, VA could award MGIB benefits based on the basic 
full-time monthly rate of $1,034 instead of waiting to make a decision 
until the claimant submitted evidence supporting entitlement to a 
higher benefit rate. Then, if the claimant subsequently submits 
evidence to support entitlement to a higher benefit rate (within one 
year of VA's letter requesting the evidence), VA would, as would be 
required under Sec.  21.1031, readjudicate the claim, and when 
appropriate recalculate the rate and award benefits based on the higher 
monthly rate. VA would pay the claimant any additional monies due him 
or her based on the recalculation, including any applicable retroactive 
payment.
    In addition to providing claimants with funds sooner (as in the 
example in the paragraph above), VA chose a 30-day period to encourage 
the claimant to respond quickly so that the claimant knows as soon as 
possible whether or not he or she is entitled to benefits. Many of the 
claimants seeking educational assistance file an application with VA 
when they enroll with an educational institution. Many educational 
institutions have a period of time, referred to as the ``drop/add 
period'', during which a student can drop his or her classes without 
incurring tuition costs. The sooner the claimant receives VA's formal 
determination regarding his or her eligibility status, the sooner he or 
she can make a decision regarding his or her continued enrollment.
    Considering that claimants generally have incurred education 
expenses, that education claims do not generally require the types of 
information and evidence necessary to substantiate compensation or 
pension claims, that VA can provide a determination and funds sooner 
with a 30-day response period, that under the provisions of proposed 
Sec.  21.1031, if the claimant subsequently submits evidence or 
information to support the claim within one year of VA's letter 
requesting the evidence, VA would readjudicate the claim, and the other 
reasons discussed above, VA is making in the final rule no change to 
the proposed 30-day response period in 38 CFR 21.1031(b)(3).
    Based on the rationale set forth in the proposed rule and in this 
document, we are adopting the provisions of the proposed rule as a 
final rule without change except that in the proposed parenthetical 
statements following sections in the proposed rule with information 
collection provisions we are, where applicable, making changes in the 
final rule to display the approved information collection control 
numbers that have been assigned by the Office of Management and Budget 
(OMB).

Paperwork Reduction Act of 1995

    This final rule contains provisions that constitute collections of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521). In the preamble of the proposed rule, we described the 
collections in the proposed rule that would need approval by OMB and 
provided a comment period. We did not receive any comments concerning 
those collections. OMB has approved those proposed collections, and has 
assigned control numbers 2900-0051, 2900-0682, 2900-0695, 2900-0696, 
2900-0697, and 2900-0698 to them. We display the control numbers under 
the applicable sections of the regulations in this final rule. OMB 
assigns a control number for each collection of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by OMB unless OMB waives such review, as any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined to be a significant regulatory action under the Executive 
Order because it raises novel policy issues.

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this final 
rule does not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. Although this final rule will affect 
some small entities that are testing organizations or educational 
institutions, any economic impact on them would be minor. The portions 
of this rule that could have an economic impact on these small entities 
are recordkeeping, reporting, and application for approval 
requirements, the burdens for which would be the minor ones that were 
discussed in the preamble of the proposed rule under the heading 
Paperwork Reduction Act of 1995. Pursuant to 5 U.S.C. 605(b), this 
rule, therefore, is exempt from the initial and final regulatory 
flexibility analyses requirements of sections 603 and 604.

[[Page 16964]]

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This rule has no such effect on State, 
local, and tribal governments, or the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
programs that are affected by this rule are 64.117, Survivors and 
Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' 
Educational Assistance; and 64.124, All-Volunteer Force Educational 
Assistance. This rule also affects the Montgomery GI Bill--Selected 
Reserve program, for which there is no Catalog of Federal Domestic 
Assistance number.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs-education, Grant programs-veterans, Health 
care, Loan programs-education, Loan programs-veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: November 30, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out above, VA amends 38 CFR part 21 (subparts B, D, 
G, and K) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart B--Claims and Applications for Educational Assistance

0
1. The authority citation for part 21, subpart B is revised to read as 
follows:

    Authority: 38 U.S.C. 501(a), ch. 51, and as noted in specific 
sections.


0
2. Section 21.1029 is amended by:
0
a. Revising the introductory text.
0
b. In paragraph (b)(1), removing ``Sec.  21.1032'' and adding, in its 
place, ``Sec.  21.1033''.
0
c. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), 
and (i), respectively.
0
d. Adding new paragraph (c).
0
e. In newly redesignated paragraph (e)(1)(ii), removing ``paragraph 
(c)(1)(i)'' and adding, in its place, ``paragraph (d)(1)(i)''.
0
f. In newly redesignated paragraph (e)(4), removing ``school'' and 
adding, in its place, ``educational institution or training 
establishment''.
0
g. Adding paragraphs (f), (g), and (h) following the authority citation 
for paragraph (e).
    The revision and additions read as follows:


Sec.  21.1029  Definitions.

    The following definitions of terms apply to this subpart and 
subparts C, D, F, G, H, K, and L, to the extent that the terms are not 
otherwise defined in those subparts:
* * * * *
    (c) Educational institution. The term educational institution 
means:
    (1) A vocational school or business school;
    (2) A junior college, teachers' college, college, normal school, 
professional school, university, or scientific or technical 
institution;
    (3) A public or private elementary school or secondary school;
    (4) Any entity, other than an institution of higher learning, that 
provides training for completion of a State-approved alternative 
teacher certification program;
    (5) An organization or entity offering a licensing or certification 
test; or
    (6) Any private entity that offers, either directly or indirectly 
under an agreement with another entity, a course or courses to fulfill 
requirements for the attainment of a license or certificate generally 
recognized as necessary to obtain, maintain, or advance in employment 
in a profession or vocation in a high technology occupation.

(Authority: 38 U.S.C. 3452, 3501(a)(6), 3689(d))


* * * * *
    (f) Information. The term information means nonevidentiary facts, 
such as the claimant's Social Security number or address, or the name 
of the educational institution the claimant is attending.

(Authority: 38 U.S.C. 5101, 5102, 5103)


    (g) Substantially complete application. (1) The term substantially 
complete application means, for an individual's first application for 
educational assistance administered by VA, an application containing--
    (i) The claimant's name;
    (ii) His or her relationship to the veteran, if applicable;
    (iii) Sufficient information for VA to verify the claimed service, 
if applicable;
    (iv) The benefit claimed;
    (v) The program of education, if applicable; and
    (vi) The name of the educational institution or training 
establishment the claimant intends to attend, if applicable.
    (2) For subsequent applications for educational assistance 
administered by VA, a substantially complete application means an 
application containing the information specified in paragraphs 
(g)(1)(i) through (g)(1)(vi) of this section, except that the 
application may omit any information specified in paragraphs (g)(1)(ii) 
or (g)(1)(iii) of this section that is already of record with VA.

(Authority: 38 U.S.C. 5102, 5103, 5103A)


    (h) Training establishment. The term training establishment means 
any establishment providing apprentice or other training on-the-job, 
including those under the supervision of a college, university, any 
State department of education, any State apprenticeship agency, any 
State board of vocational education, any joint apprenticeship 
committee, the Bureau of Apprenticeship and Training established in 
accordance with 29 U.S.C. chapter 4C, or any agency of the Federal 
government authorized to supervise such training.

(Authority: 38 U.S.C. 3452(e), 3501(a)(9))


0
3. Section 21.1030 is revised to read as follows:


Sec.  21.1030  Claims.

    (a) Claim for educational assistance. (1) The first time an 
individual claims educational assistance administered by VA for pursuit 
of a program of education, he or she must file an application for 
educational assistance using a form the Secretary prescribes for that 
purpose.
    (2) If an individual changes his or her program of education or 
place of training after filing his or her first application for 
educational assistance, he or she must file an application requesting 
the change of program or place of training using a form the Secretary 
prescribes for that purpose.
    (3) A servicemember must consult with his or her education service 
officer before filing an application for educational assistance, 
whether it is the first application or an application to request a 
change of program or place of training.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501, 3034(a), 3241(a), 
3471, 3513, 5101(a))


    (b) Filing a claim for educational assistance to pay for a 
licensing or certification test. To receive educational assistance to 
pay for a licensing or

[[Page 16965]]

certification test, an individual must file a claim for educational 
assistance.
    (1) If the claim is the first claim for educational assistance 
administered by VA, the individual must file an application for 
educational assistance using a form the Secretary prescribes for that 
purpose and must include the information described in paragraphs 
(b)(2)(i) through (b)(2)(vi) of this section.
    (2) If the claim is the second or subsequent claim for educational 
assistance, the claim must include:
    (i) The name of the test;
    (ii) The name and address of the organization or entity issuing the 
license or certificate;
    (iii) The date the claimant took the test;
    (iv) The cost of the test;
    (v) A statement authorizing release of the claimant's test 
information to VA, such as: ``I authorize release of my test 
information to VA''; and
    (vi) Such other information as the Secretary may require.

(Authority: 38 U.S.C. 501, 3034(a), 3241(a), 3471, 3513, 5101(a))


    (c) Filing a claim for educational assistance to supplement tuition 
assistance provided under a program administered by the Secretary of a 
military department. To receive tuition assistance top-up as defined in 
Sec.  21.4200(hh), an individual must file a claim for educational 
assistance.
    (1) If the claim is the first claim for educational assistance 
administered by VA, the individual must file an application for 
educational assistance using a form the Secretary prescribes for that 
purpose.
    (2) If the claim is the second or subsequent claim for educational 
assistance, the claimant may submit a statement that he or she wishes 
to receive tuition assistance top-up.
    (3) The claimant must also submit a copy of the form(s) that the 
military service with jurisdiction requires for tuition assistance and 
that had been presented to the educational institution, covering the 
course or courses for which the claimant wants tuition assistance top-
up. Examples of these forms include:
    (i) DA Form 2171, Request for Tuition Assistance-Army Continuing 
Education System;
    (ii) AF Form 1227, Authority for Tuition Assistance-Education 
Services Program;
    (iii) NAVMC 10883, Application for Tuition Assistance, and either 
NAVEDTRA 1560/5, Tuition Assistance Authorization or NAVMC (page 2), 
Tuition Assistance Authorization;
    (iv) Department of Homeland Security, USCG CG-4147, Application for 
Off-Duty Assistance; and
    (v) Request for Top-Up: eArmyU Program.
    (4) The claimant must also provide to VA the following information, 
to the extent it is not contained on any form filed under paragraph 
(c)(1) or (c)(3) of this section:
    (i) His or her name;
    (ii) His or her Social Security number;
    (iii) The name of the educational institution;
    (iv) The name of the course or courses for which the claimant wants 
educational assistance;
    (v) The number of the course or courses;
    (vi) The number of credit hours for each course;
    (vii) The beginning and ending date of each course;
    (viii) The cost of the course or courses; and
    (ix) If the claimant doesn't want to receive the full amount of 
that cost not met by the Secretary of the military department 
concerned, the portion that the claimant wishes to receive.
    (5) If the claimant's military department uses an electronic 
tuition assistance application process with electronic signatures, VA 
will accept an electronic transmission of the approved tuition 
assistance application directly from the military department concerned 
on behalf of the claimant if--
    (i) The electronic tuition assistance application indicates the 
servicemember's intent to claim tuition-assistance top-up; and
    (ii) The information described in paragraph (c)(4) of this section 
is included in the electronic application.


(Authority: 38 U.S.C. 501, 3034(a), 3241(a), 3471, 3513, 5101(a))


(The Office of Management and Budget has approved the information 
collection provisions in this section under control numbers 2900-
0074, 2900-0098, 2900-0099, 2900-0154, 2900-0695, and 2900-0698.)

0
4. Section 21.1031 is amended by:
0
a. In paragraph (a), removing ``claim forms,'' and adding, in its 
place, ``VA claim forms and''.
0
b. Revising paragraph (b) to read as follows.


Sec.  21.1031  VA responsibilities when a claim is filed.

* * * * *
    (b) VA has a duty to notify claimants of necessary information or 
evidence. (1) Except when a claim cannot be substantiated because there 
is no legal basis for the claim, or undisputed facts render the 
claimant ineligible for the claimed benefit, when VA receives a 
complete or substantially complete application for educational 
assistance provided under subpart C, D, G, H, K, or L of this part VA 
will--
    (i) Notify the claimant of any information and evidence that is 
necessary to substantiate the claim; and
    (ii) Inform the claimant which information and evidence, if any, 
the claimant is to provide to VA and which information and evidence, if 
any, VA will try to obtain for the claimant.
    (2) The information and evidence that VA, pursuant to paragraph 
(b)(1) of this section informs the claimant that the claimant must 
provide, must be provided within one year from the date of the notice. 
If VA does not receive such information and evidence from the claimant 
within that time period, VA may adjudicate the claim based on the 
information and evidence in the file.
    (3) If the claimant has not responded to the request within 30 
days, VA may decide the claim before the expiration of the one-year 
period prescribed in paragraph (b)(2) of this section, based on all the 
information and evidence in the file, including information and 
evidence it has obtained on behalf of the claimant. If VA does so, 
however, and the claimant subsequently provides the information and 
evidence within one year of the date of the request, VA must 
readjudicate the claim. If VA's decision on a readjudication is 
favorable to the claimant, the award shall take effect as if the prior 
decision by VA on the claim had not been made.
    (4) If VA receives an incomplete application for benefits, it will 
notify the claimant of the information necessary to complete the 
application and will defer assistance until the claimant submits this 
information. If the information necessary to complete the application 
is not received by VA within one year from the date of such notice, VA 
cannot pay or provide any benefits based on that application.
    (5) For the purpose of this paragraph, if VA must notify the 
claimant, VA will provide notice to:
    (i) The claimant;
    (ii) His or her fiduciary, if any; and
    (iii) His or her representative, if any.


(Authority: 38 U.S.C. 5102, 5103, 5103A(a)(3))

Sec.  21.1032  [Redesignated as Sec.  21.1033]

0
5. Section 21.1032 is redesignated as Sec.  21.1033.

0
6. New Sec.  21.1032 is added to read as follows:

[[Page 16966]]

Sec.  21.1032  VA has a duty to assist claimants in obtaining evidence.

    (a) VA's duty to assist begins when VA receives a complete or 
substantially complete application. (1) Except as provided in paragraph 
(d) of this section, upon receipt of a complete or substantially 
complete application for educational assistance under subpart C, D, G, 
H, K, or L of this part, VA will--
    (i) Make reasonable efforts to help a claimant obtain evidence 
necessary to substantiate the claim; and
    (ii) Give the assistance described in paragraphs (b) and (c) of 
this section to an individual attempting to reopen a finally decided 
claim.
    (2) VA will not pay any fees a custodian of records may charge to 
provide the records VA requests.


(Authority: 38 U.S.C. 5103A)


    (b) Obtaining records not in the custody of a Federal department or 
agency. (1) VA will make reasonable efforts to obtain relevant records 
not in the custody of a Federal department or agency. These records 
include relevant records from:
    (i) State or local governments;
    (ii) Private medical care providers;
    (iii) Current or former employers; and
    (iv) Other non-Federal governmental sources.
    (2) The reasonable efforts described in paragraph (b)(1) of this 
section will generally consist of an initial request for the records 
and, if VA does not receive the records, at least one follow-up 
request. The following are exceptions to this provision concerning the 
number of requests that VA generally will make:
    (i) VA will not make a follow-up request if a response to the 
initial request indicates that the records sought do not exist or that 
a follow-up request for the records would be futile.
    (ii) If VA receives information showing that subsequent requests to 
the initial or another custodian could result in obtaining the records 
sought, reasonable efforts will include an initial request and, if VA 
does not receive the records, at least one follow-up request to the new 
source or an additional request to the original source.
    (3) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from non-Federal agency or department 
custodians. The claimant must provide enough information to identify 
and locate the existing records, including--
    (i) The person, company, agency, or other custodian holding the 
records;
    (ii) The approximate time frame covered by the records; and
    (iii) In the case of medical treatment records, the condition for 
which treatment was provided.
    (4) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the person, company, agency, 
or other custodian holding the records.

(Authority: 38 U.S.C. 5103A)

    (c) Obtaining records in the custody of a Federal department or 
agency. (1) VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to:
    (i) Military records;
    (ii) Medical and other records from VA medical facilities;
    (iii) Records from non-VA facilities providing examination or 
treatment at VA expense; and
    (iv) Records from other Federal agencies.
    (2) VA will end its efforts to obtain records from a Federal 
department or agency only if VA concludes that the records sought do 
not exist or that further efforts to obtain those records would be 
futile. Cases in which VA may conclude that no further efforts are 
required include cases in which the Federal department or agency 
advises VA that the requested records do not exist or that the 
custodian of such records does not have them.
    (3) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from Federal department or agency 
custodians. At VA's request, the claimant must provide enough 
information to identify and locate the existing records, including--
    (i) The custodian or agency holding the records;
    (ii) The approximate time frame covered by the records; and
    (iii) In the case of medical treatment records, the condition for 
which treatment was provided.
    (4) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the custodian or agency 
holding the records.

(Authority: 38 U.S.C. 5103A)

    (d) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete or 
complete application for benefits indicates that there is no reasonable 
possibility that any assistance VA would provide to the claimant would 
substantiate the claim. VA will discontinue providing assistance in 
obtaining evidence for a claim if the evidence obtained indicates that 
there is no reasonable possibility that further assistance would 
substantiate the claim. Circumstances in which VA will refrain from or 
discontinue providing assistance in obtaining evidence include, but are 
not limited to:
    (1) The claimant's ineligibility for the benefit sought because of 
lack of qualifying service, lack of veteran status, or other lack of 
legal eligibility;
    (2) Claims that are inherently not credible or clearly lack merit; 
and
    (3) An application requesting a benefit to which the claimant is 
not entitled as a matter of law.

(Authority: 38 U.S.C. 5103A)

    (e) Duty to notify claimant of inability to obtain records. (1) VA 
will notify the claimant either orally or in writing when VA:
    (i) Makes reasonable efforts to obtain relevant non-Federal 
records, but is unable to obtain them; or
    (ii) After continued efforts to obtain Federal records, concludes 
that it is reasonably certain they do not exist or that further efforts 
to obtain them would be futile.
    (2) For non-Federal records requests, VA may provide the notice to 
the claimant at the same time it makes its final attempt to obtain the 
relevant records.
    (3) VA will make a record of any oral notice conveyed under 
paragraph (e) of this section to the claimant.
    (4) The notice to the claimant must contain the following 
information:
    (i) The identity of the records VA was unable to obtain;
    (ii) An explanation of the efforts VA made to obtain the records;
    (iii) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of 
this section;
    (iv) A description of any further action VA will take regarding the 
claim, including, but not limited to, notice that VA will decide the 
claim based on the evidence of record unless the claimant submits the 
records VA was unable to obtain; and
    (v) A notice that the claimant is ultimately responsible for 
obtaining the evidence.
    (5) If VA becomes aware of the existence of relevant records before 
deciding the claim, VA will notify the claimant of the existence of 
such records and ask that the claimant provide a release for the 
records. If the claimant does not provide any necessary release of the 
relevant records that VA is unable to obtain, VA will ask that the 
claimant obtain the records and provide them to VA.
    (6) For the purpose of this section, if VA must notify the 
claimant, VA will provide notice to:
    (i) The claimant;
    (ii) His or her fiduciary, if any; and

[[Page 16967]]

    (iii) His or her representative, if any.


(Authority: 38 U.S.C. 5102(b), 5103(a), 5103A)

Sec.  21.1033  [Amended]

0
6a. Newly redesignated Sec.  21.1033 is amended by removing and 
reserving paragraph (b).

Subpart D--Administration of Educational Assistance Programs

0
7. The authority citation for part 21, subpart D is revised to read as 
follows:

    Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 
30, 32, 34, 35, 36, and as noted in specific sections.


0
8. Section 21.4005 is amended by:
0
a. Adding introductory text to the section.
0
b. Revising the paragraph (a) heading and paragraphs (a)(1) and (a)(2), 
and the authority citation at the end of paragraph (a).
0
c. Redesignating paragraphs (a)(3) and (a)(4) as paragraphs (a)(5) and 
(a)(7), respectively.
0
d. Adding new paragraphs (a)(3), (a)(4), and (a)(6).
0
e. In newly redesignated paragraph (a)(5), removing ``a school'' and 
adding, in its place, ``an educational institution'' and removing 
``such school.'' and adding, in its place, ``such educational 
institution.''.
0
f. Redesignating paragraphs (b)(1)(ii)(a) through (b)(1)(ii)(f) as 
paragraphs (b)(1)(ii)(A) through (b)(1)(ii)(F), respectively.
0
g. Revising newly redesignated paragraph (b)(1)(ii)(F).
0
h. In paragraphs (b)(1)(i) and (b)(2)(i), removing ``school'' and 
adding, in its place, ``educational institution''.

0
i. Redesignating paragraphs (b)(2)(ii)(a) and (b)(2)(ii)(b) as 
paragraphs (b)(2)(ii)(A) and (b)(2)(ii)(B), respectively.
0
j. Removing the authority citation following newly redesignated 
paragraph (b)(2)(ii)(A) and adding an authority citation following 
newly redesignated paragraph (b)(2)(ii)(B).
0
k. In newly redesignated paragraphs (b)(1)(ii)(D), (b)(2)(ii)(A), and 
(b)(2)(ii)(B), removing ``schools'' and adding, in its place, 
``educational institutions''.
0
l. In newly redesignated paragraph (b)(2)(ii)(B), removing ``persons.'' 
and adding, in its place, ``persons, or desiring to offer licensing or 
certification tests to veterans or eligible persons.''.
0
m. In paragraph (c)(1), removing ``request for'' and adding, in its 
place, ``requests for''.
0
n. Removing the authority citation following paragraph (c)(2) and 
adding an authority citation following paragraph (c)(3).
0
o. Revising paragraph (d).
0
p. In paragraph (e), redesignating paragraphs (e)(1) through (e)(3) as 
paragraphs (e)(1)(i) through (e)(1)(iii), respectively; designating the 
introductory text following the paragraph heading as paragraph (e)(1) 
introductory text; and designating the undesignated paragraph as 
paragraph (e)(2).
0
q. In newly redesignated paragraph (e)(1) introductory text, removing 
``when:'' and adding, in its place, ``when, in circumstances involving 
a finding of conflicting interests:''.
0
r. In newly redesignated paragraph (e)(2), removing ``school'' and 
adding, in its place, ``educational institution''.
0
s. Adding an authority citation for paragraph (e).
0
t. Removing paragraph (f).
    The revisions and additions read as follows:


Sec.  21.4005  Conflicting interests.

    For the purposes of this section, a person will be considered to be 
an ``officer'' of the State approving agency or VA when he or she has 
authority to exercise supervisory authority, and ``educational 
institution'' includes an organization or entity offering licensing or 
certification tests.

(Authority: 38 U.S.C. 3683, 3689)


    (a) A conflict of interest can cause the dismissal of a VA or State 
approving agency officer or employee and other adverse consequences. 
(1) An officer or employee of VA will be immediately dismissed from his 
or her office or employment, if while such an officer or employee he or 
she has owned any interest in, or received any wages, salary, 
dividends, profits, gratuities, or services from any educational 
institution operated for profit--
    (i) In which a veteran or eligible person was pursuing a course of 
education under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 34, 
35, or 36; or
    (ii) Offering a licensing or certification test that is approved 
for payment of educational assistance under 38 U.S.C. chapter 30, 32, 
or 35 to veterans or eligible persons who take that test.
    (2) Except as provided in paragraph (a)(3) or (c) of this section, 
VA will discontinue payments under Sec.  21.4153 to a State approving 
agency when the Secretary finds that any individual who is an officer 
or employee of a State approving agency has, while he or she was such 
an officer or employee, owned any interest in, or received any wages, 
salary, dividends, profits, gratuities, or services from any 
educational institution operated for profit--
    (i) In which a veteran or eligible person was pursuing a course of 
education or training under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 
30, 32, 34, 35, or 36; or
    (ii) Offering a licensing or certification test that is approved 
for payment of educational assistance under 38 U.S.C. chapter 30, 32, 
or 35 to veterans or eligible persons who take that test.
    (3) VA will not discontinue payments to a State approving agency 
under paragraph (a)(2) of this section if the State approving agency, 
after learning that it has any officer or employee described in that 
paragraph, acts without delay to end the employment of that individual.
    (4) If VA discontinues payments to a State approving agency 
pursuant to paragraph (a)(2) of this section, VA will not resume these 
payments while such an individual is an officer or employee of the:
    (i) State approving agency;
    (ii) State Department of Veterans Affairs; or
    (iii) State Department of Education.
* * * * *
    (6) If a State approving agency finds that any officer or employee 
of VA or of the State approving agency owns an interest in, or receives 
wages, salary, dividends, profits, gratuities, or services from an 
organization or entity, operated for profit, that offers licensing or 
certification tests, the State approving agency:
    (i) Will not approve any licensing or certification test that 
organization or entity offers; and
    (ii) Will withdraw approval of any licensing or certification test 
that organization or entity offers.
* * * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3683, 3689)


    (b) * * *
    (1) * * *
    (ii) * * *
    (F) His or her position is not connected in any way with the 
inspection, approval, or supervision of educational institutions 
desiring to train veterans or eligible persons or to offer a licensing 
or certification test; or with the processing of claims by or making 
payments to veterans and eligible persons for taking an approved 
licensing or certification test.
    (2) * * *
    (ii) * * *
    (B) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3683, 3689)



[[Page 16968]]


    (c) * * *
    (3) * * *

(Authority: 38 U.S.C. 512(a), 3683)


    (d) Notice when VA does not grant a requested waiver. When VA has 
denied a request for waiver of application of paragraph (a)(1) or 
(a)(2) of this section, VA will immediately notify the State approving 
agency and the educational institution:
    (1) That the approval of courses or licensing and certification 
tests offered by the educational institution must be withdrawn;
    (2) The reasons for the withdrawal of approval; and
    (3) The conditions that will permit the courses or such tests to be 
approved again.

(Authority: 38 U.S.C. 3683, 3689(d))


    (e) * * *

(Authority: 38 U.S.C. 3683, 3690, 5104)



0
9. Section 21.4008 is revised to read as follows:


Sec.  21.4008  Prevention of overpayments.

    (a) Prevention of overpayments to veterans and eligible persons 
enrolled in educational institutions. When approval of a course may be 
withdrawn, and overpayments may exist or may be created, VA may suspend 
further payments to veterans and eligible persons enrolled in the 
educational institution offering the course until the question of 
withdrawing approval is resolved. See Sec.  21.4210.

(Authority: 38 U.S.C. 3690(b))


    (b) Prevention of overpayments to veterans and eligible persons 
taking licensing and certification tests. When approval of a licensing 
or certification test may be withdrawn, and overpayments may exist or 
may be created, VA may suspend payments to veterans and eligible 
persons taking that test until the question of withdrawing approval is 
resolved. See Sec.  21.4210.

(Authority: 38 U.S.C. 3689(a), 3690(b))



0
10. Section 21.4009 is amended by:
0
a. Revising the section heading.
0
b. Adding introductory text.
0
c. Revising paragraphs (c) and (d).
0
d. In paragraph (e), removing ``A school'' and adding, in its place, 
``An educational institution'', and removing ``the school'' and adding, 
in its place, ``the educational institution''.
0
e. Adding authority citations following paragraphs (e) through (j), 
respectively.
0
f. In paragraph (f), removing ``veteran'' each place that it appears 
and adding, in its place, ``veteran, reservist,'', and removing 
``school'' each place that it appears and adding, in its place, 
``educational institution''.
0
g. In paragraphs (g) and (h), removing ``the school'' each place that 
it appears and adding, in its place, ``the educational institution''.
0
h. In paragraph (g), in its heading, removing ``school'' and adding, in 
its place, ``educational institution'' and, in its text, removing ``The 
school'' and adding, in its place, ``The educational institution''.
0
i. In paragraph (i), removing ``school and'' and adding, in its place, 
``educational institution and''.
0
j. In paragraph (j), removing ``a school's'' and adding, in its place, 
``an educational institution's''.
    The additions and revisions read as follows:


Sec.  21.4009  Waiver or recovery of overpayments.

    For the purposes of this section, ``educational institution'' 
includes an organization or entity offering licensing or certification 
tests.
* * * * *
    (c) Committee on School Liability. (1) Each VA Regional Processing 
Office shall have a Committee on School Liability. For the purposes of 
this section, the Manila Regional Office is considered the VA Regional 
Processing Office of jurisdiction for educational institutions located 
in the Philippines.
    (2) The Secretary delegates to each Committee on School Liability, 
and to any panel that the chairperson of the Committee may designate 
and draw from the Committee, the authority to find whether an 
educational institution is liable for an overpayment.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241, 
3685, 3689(d))


    (d) Initial decision. (1) The Education Officer of the VA Regional 
Processing Office of jurisdiction, or the Service Center Manager when 
the Manila Regional Office is considered the VA Regional Processing 
Office of jurisdiction, will decide whether there is evidence that 
would warrant a finding that an educational institution is potentially 
liable for an overpayment.
    (2) Following each finding of potential liability, the Finance 
Officer of the VA Regional Processing Office of jurisdiction will 
notify the educational institution in writing of VA's intent to apply 
the liability provisions of paragraph (a) of this section. The notice 
will--
    (i) Identify the students who were overpaid;
    (ii) Identify the veterans and eligible persons who took the 
licensing or certification test and were overpaid;
    (iii) Set out in the case of each student, or in the case of each 
veteran or eligible person who took the test, the educational 
institution's actions or omissions which resulted in the finding that 
the educational institution was potentially liable for the overpayment; 
and
    (iv) State that VA will determine liability on the basis of the 
evidence of record unless the VA Regional Processing Office of 
jurisdiction receives additional evidence or a request for a hearing 
within 30 days of the date the educational institution received the 
notice.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241, 
3685, 3689(d))


    (e) * * *

(Authority: 38 U.S.C. 512(a), 3685, 3689)


    (f) * * *

(Authority: 38 U.S.C. 3685, 3689)


    (g) * * *

(Authority: 38 U.S.C. 512(a), 3685, 3689)


    (h) * * *

(Authority: 38 U.S.C. 512(a), 3685, 3689)


    (i) * * *

(Authority: 38 U.S.C. 512(a), 3685, 3689)


    (j) * * *

(Authority: 38 U.S.C. 512(a), 3685, 3689)



0
11. Section 21.4131 is amended by:
0
a. Revising the introductory text.
0
b. Redesignating paragraph (a)(1) introductory text and paragraphs 
(a)(1)(i) through (a)(1)(iii) as paragraph (a)(1)(i) and paragraphs 
(a)(1)(i)(A) through (a)(1)(i)(C), respectively; redesignating 
paragraph (a)(2) introductory text and paragraphs (a)(2)(i) and 
(a)(2)(ii) as paragraph (a)(1)(ii) and paragraphs (a)(1)(ii)(A) and 
(a)(1)(ii)(B), respectively; and adding new paragraph (a)(1) 
introductory text and new paragraph (a)(2).
0
c. Revising the authority citation following paragraph (a).
0
d. Redesignating paragraph (d)(1) introductory text and paragraphs 
(d)(1)(i) through (d)(1)(iv) as paragraph (d)(1)(i) and paragraphs 
(d)(1)(i)(A) through (d)(1)(i)(D), respectively; redesignating 
paragraph (d)(2) introductory text and paragraphs (d)(2)(i) and 
(d)(2)(ii) as paragraph (d)(1)(ii) and paragraphs (d)(1)(ii)(A) and 
(d)(1)(ii)(B), respectively; and adding new paragraph (d)(1) 
introductory text and new paragraph (d)(2).
0
e. Revising the authority citation following paragraph (d).
    The revisions and additions read as follows:

[[Page 16969]]

Sec.  21.4131  Commencing dates.

    VA will determine under this section the commencing date of an 
award or increased award of educational assistance provided pursuant to 
subpart C or G. When more than one paragraph in this section applies, 
VA will award educational assistance using the latest of the applicable 
commencing dates.
    (a) * * *
    (1) For other than licensing or certification tests.
* * * * *
    (2) For licensing or certification tests. VA will award educational 
assistance for the cost of a licensing or certification test only when 
the veteran or servicemember takes such test--
    (i) While the test is approved under 38 U.S.C. chapter 36;
    (ii) While the veteran or servicemember is eligible for educational 
assistance under this subpart; and
    (iii) No more than one year before the date VA receives a claim for 
reimbursement of the cost of the test.

(Authority: 38 U.S.C. 3672, 3689, 5110, 5113)

* * * * *
    (d) * * *
    (1) For other than licensing or certification tests.
* * * * *
    (2) For licensing or certification tests. VA will award educational 
assistance for the cost of a licensing or certification test only when 
the veteran or servicemember takes such test--
    (i) While the test is approved under 38 U.S.C. chapter 36;
    (ii) While the veteran or servicemember is eligible for educational 
assistance under this subpart; and
    (iii) No more than one year before the date VA receives a claim for 
reimbursement of the cost of the test.

(Authority: 38 U.S.C. 3512, 3672, 3689, 5110, 5113)



0
12. In Sec.  21.4146, paragraph (c) is amended by removing 
``institution'' both places it appears, and adding, in its place, 
``institution (other than an organization or entity offering a 
licensing or certification test)''.

0
13. Section 21.4150 is amended by:
0
a. In the introductory text of paragraph (c), removing ``will, with 
respect to a State, be deemed to refer to VA when that State:'' and 
adding, in its place, ``will be deemed to refer to VA:''.
0
b. Redesignating paragraphs (c)(1) and (2) as paragraphs (c)(1)(i) and 
(ii), respectively.
0
c. In newly redesignated paragraph (c)(1)(ii), removing ``Sec.  21.4153 
of this part.'' and adding, in its place, ``Sec.  21.4153; and''.
0
d. Adding paragraph (c)(1) introductory text, new paragraph (c)(2), and 
paragraph (g).
0
e. Revising the cross reference at the end of the section.
    The additions and revision read as follows:


Sec.  21.4150  Designation.

* * * * *
    (c) * * *
    (1) With respect to a State, when that State:
* * * * *
    (2) When VA has approval, disapproval, or suspension authority 
(under paragraphs (d), (e), (f), or (g) of this section, Sec.  21.4152, 
or as otherwise provided by law).
* * * * *
    (g) Approval under 38 U.S.C. 3689 of a licensing or certification 
test offered by any agency or instrumentality of the Federal government 
will be under the authority of the Secretary.

(Authority: 38 U.S.C. 3689)


    Cross Reference: Course and licensing and certification test 
approval; jurisdiction and notices. See Sec.  21.4250.


0
14. Section 21.4151 is amended by:
0
a. In paragraph (b)(3), removing the word ``and''.
0
b. Redesignating paragraph (b)(4) and its authority citation as 
paragraph (b)(6) and revising the authority citation following newly 
redesignated paragraph (b)(6).
0
c. Adding new paragraph (b)(4) and paragraph (b)(5).
    The additions and revision read as follows:


Sec.  21.4151  Cooperation.

* * * * *
    (b) * * *
    (4) Determining those licensing and certification tests that may be 
approved for cost reimbursement to veterans and eligible persons;
    (5) Ascertaining whether an organization or entity offering an 
approved licensing or certification test complies at all times with the 
provisions of 38 U.S.C. 3689; and
* * * * *

(Authority: 38 U.S.C. 3672, 3673, 3674, 3689)

* * * * *

0
15. Section 21.4152(b)(5) is amended by removing ``schools or courses'' 
both times it appears and adding, in its place, ``schools, courses, or 
licensing or certification tests''.
0
16. Section 21.4153 is amended by:
0
a. Adding introductory text.
0
b. Removing the authority citation following paragraph (a)(1)(ii).
0
c. Revising the authority citation following paragraph (a)(2)(ii).
    The revisions and addition read as follows:


Sec.  21.4153  Reimbursement of expenses.

    For the purposes of this section, other than paragraph (d)(4) of 
this section, ``educational institution'' includes an organization or 
entity offering licensing or certification tests.
    (a) * * *
    (2) * * *
    (ii) * * *

(Authority: 38 U.S.C. 3674, 3689)

* * * * *

0
17. Section 21.4154 is amended by revising the information collection 
approval parenthetical at the end of the section to read as follows:


Sec.  21.4154  Report of activities.

* * * * *
(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
0051.)


0
18. Section 21.4200 is amended by:
0
a. In paragraph (a)(5), removing ``during the period beginning on 
November 2, 1994, and ending on September 30, 1996''.
0
b. Adding introductory text.
0
c. Revising paragraph (c).
0
d. Adding paragraphs (ee), (ff), (gg), (hh), and (ii).
    The revision and additions read as follows:


Sec.  21.4200  Definitions.

    The definitions in this section apply to this subpart, except as 
otherwise provided. The definitions of terms defined in this section 
also apply to subparts C, F, G, H, K, and L if they are not otherwise 
defined for purposes of those subparts.
* * * * *
    (c) Training establishment. The term training establishment means 
any establishment providing apprentice or other training on-the-job, 
including those under the supervision of a college, university, any 
State department of education, any State apprenticeship agency, any 
State board of vocational education, any joint apprenticeship 
committee, the Bureau of Apprenticeship and Training established in 
accordance with 29 U.S.C. chapter 4C, or any agency of the Federal 
government authorized to supervise such training.

 (Authority: 38 U.S.C. 3452(e), 3501(a)(9))

* * * * *
    (ee) Certification test. The term certification test means a test 
an individual must pass in order to receive a certificate that provides 
an affirmation

[[Page 16970]]

of an individual's qualifications in a specified occupation.

(Authority: 38 U.S.C. 3452(b), 3501(a)(5), 3689)


    (ff) Licensing test. The term licensing test means a test offered 
by a State, local, or Federal agency, the passing of which is a means, 
or part of a means, to obtain a license. That license must be required 
by law in order for the individual to practice an occupation in the 
political jurisdiction of the agency offering the test.

(Authority: 38 U.S.C. 3452(b), 3501(a)(5), 3689)


    (gg) Organization or entity offering a licensing or certification 
test. (1) The term organization or entity offering a licensing or 
certification test means:
    (i) An organization or entity that causes a licensing test to be 
given and that will issue a license to an individual who passes the 
test;
    (ii) An organization or entity that causes a certification test to 
be given and that will issue a certificate to an individual who passes 
the test; or
    (iii) An organization or entity that administers a licensing or 
certification test for the organization or entity that will issue a 
license or certificate, respectively, to the individual who passes the 
test, provided that the administering organization or entity can 
provide all required information and certifications under Sec.  21.4268 
to the State approving agency and to VA.
    (2) This term does not include:
    (i) An organization or entity that develops and/or proctors a 
licensing or certification test but does not issue the license or 
certificate; or
    (ii) An organization or entity that administers a test but does not 
issue the license or certificate if that administering organization or 
entity cannot provide all required information and certifications under 
Sec.  21.4268 to the State approving agency and to VA.

(Authority: 38 U.S.C. 3452(b), 3501(a)(5), 3689)


    (hh) Tuition assistance top-up. The term tuition assistance top-up 
means a payment of basic educational assistance to meet all or a 
portion of the charges of an educational institution for the education 
or training of a servicemember that are not met by the Secretary of the 
military department concerned under 10 U.S.C. 2007(a) or (c).

(Authority: 38 U.S.C. 3014(b))


    (ii) VA Regional Processing Office. The term VA Regional Processing 
Office means a VA office where claims for educational assistance under 
38 U.S.C. chapters 30, 32, and 35 and 10 U.S.C. chapter 1606 are 
allowed or disallowed.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3685, 3689)


* * * * *

0
19. Section 21.4206 is amended by:
0
a. In the introductory text and paragraph (a), removing ``Chapter'' and 
``Chapters'' each place that they appear, and adding, in their place, 
``chapter'' and removing ``on October 31 of that'' and adding, in its 
place, ``during that calendar''.
0
b. Revising paragraph (b).
    The revision reads as follows:


Sec.  21.4206  Reporting fee.

* * * * *
    (b) In computing the reporting fee VA will not count a veteran or 
servicemember whose only receipt of educational assistance under 38 
U.S.C. chapter 30 during a calendar year was tuition assistance top-up.

(Authority: 38 U.S.C. 3014(b), 3684(c))


* * * * *

0
20. Section 21.4209 is amended by:
0
a. In the introductory text of paragraph (a), removing ``educational 
institutions'' and adding, in its place, ``an educational institution, 
including for purposes of this section an organization or entity 
offering a licensing or certification test,''.
0
b. In paragraph (a)(1), removing ``Chapter 1606 of Title 10 U.S.C. or 
Chapters 30, 32, 34, 35, or 36 of Title 38 U.S.C.'' and adding, in its 
place, ``10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 34, 35, or 
36;''.
0
c. In paragraph (a)(2), removing the period at the end of the paragraph 
and adding, in its place, ``; and'' and removing the authority citation 
following paragraph (a)(2).
0
d. Adding paragraph (a)(3).
0
e. In paragraph (b) introductory text, paragraph (c), and paragraph (d) 
introductory text, removing ``will'' each place that it appears and 
adding, in its place, ``must'', and removing ``school'' and adding, in 
its place, ``educational institution''.
0
f. In paragraph (b)(1), removing the period and adding, in its place, a 
semicolon, and removing ``veterans'' and adding, in its place, 
``veterans, reservists,''.
0
g. In paragraph (b)(2), removing the period and adding, in its place, a 
semicolon, and removing ``veterans'' and adding, in its place, 
``veterans, reservists,'', and removing ``school'' and adding, in its 
place, ``educational institution.''
0
h. In paragraph (b)(3), removing ``veteran's'' and adding, in its 
place, ``veteran's, reservist's,'', and removing the period and adding 
a semicolon in its place.
0
i. In paragraph (b)(4), adding a semicolon at the end of the paragraph.
0
j. In paragraph (b)(5), removing the period and adding ``; and'' in its 
place.
0
k. Revising paragraph (b)(7).
0
l. Revising paragraph (f).
0
m. Adding an information collection approval parenthetical at the end 
of the section.
    The additions and revisions read as follows:


Sec.  21.4209  Examination of records.

    (a) * * *
    (3) The records of other individuals who took a licensing or 
certification test that VA believes are necessary to ascertain whether 
the veterans and eligible persons taking such test were reimbursed the 
correct amount.

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3689, 3690)


    (b) * * *
    (7) Records necessary to demonstrate compliance with the 
requirements of Sec.  21.4268.

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3689, 3690)

* * * * *
    (f) Retention of records. (1) Except as provided in paragraph 
(f)(2) of this section, an educational institution must keep records 
and accounts, including those pertaining to students not receiving 
benefits from VA, as described in this section, pertaining to each 
period of enrollment of a veteran, reservist, or eligible person. If 
those records are not available electronically, the paper records must 
be kept intact and in good condition at the educational institution for 
at least 3 years following the end of each enrollment period. If the 
records are stored electronically, the paper records may be stored at 
another site. The electronic records must be easily accessible at the 
educational institution for at least 3 years following the end of each 
enrollment period.
    (2) An organization or entity offering a licensing or certification 
test must keep records and accounts intact and in good condition that 
are needed to show that veterans and eligible persons have been paid 
correctly for taking licensing or certification tests. The organization 
or entity must keep those records, at a site mutually agreed on, for at 
least 3 years following the date of the test.
    (3) An educational institution will not be required under this 
section to retain records for longer than 3 years unless the 
educational institution receives from the Government Accountability 
Office or VA not later than 30 days before the

[[Page 16971]]

end of the 3-year period a written request for longer retention.

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3689, 3690)


(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
0696.)


0
21. Section 21.4210 is amended by:
0
a. Revising the section heading, the heading of paragraph (a), and 
paragraphs (a)(1) and (a)(2)(ii).
0
b. In paragraph (b), designating the introductory text following the 
paragraph heading as paragraph (b)(1) introductory text; redesignating 
paragraphs (b)(1) and (b)(2) as paragraphs (b)(1)(i) and (b)(1)(ii), 
respectively; and adding a new paragraph (b)(2) immediately after the 
authority citation following paragraph (b)(1)(ii).
0
c. Revising the authority citation following paragraph (c) and revising 
paragraph (d)(1) introductory text.
0
d. Redesignating paragraphs (d)(1)(i), (d)(1)(ii), (d)(2), and (d)(3) 
as paragraphs (d)(2)(i), (d)(2)(ii), (d)(3), and (d)(4), respectively.
0
e. Adding new paragraphs (d)(1)(i) and (d)(1)(ii); paragraph 
(d)(1)(iii); and a new paragraph (d)(2) introductory text.
0
f. In newly redesignated paragraph (d)(2)(i), removing ``and 21.4264'' 
and adding, in its place, ``21.4264, and 21.4268''.
0
g. Revising the authority citation following paragraph (d).
0
h. In paragraphs (e)(1) and (f), removing ``facility'' each place that 
it appears and adding, in its place, ``Regional Processing Office''.
0
i. Immediately after the authority cit