§3.55 Proof of death. Where a claim is filed on account of the death of a person, the proof of death shall be established as follows:

(a) By a copy of the public record of the State or community where death occurred, certified to by the custodian of such records; or by a duly certified copy of a coroner's report of death or a verdict of a coroner's jury of the State or community where death occurred, provided such report or verdict properly identified the deceased.

(b) Where death occurs in a hospital or institution under the control of the United States Government, by a death certificate signed by a medical officer of the hospital or institution, or by a clinical summary or other report showing fact and date of death signed by a medical officer of the hospital or institution, or by furnishing the evidence required under paragraph (a) of this section.

(c) Where death occurs while deceased was on the retired list, in an inactive duty status, or in the active service in the Regular Establishment or the Reserve components of the United States Army, Air Force, Navy, Marine Corps, or Coast Guard, by an official report of death from the Department of the Army, Air Force, Navy, or Treasury Department, or by furnishing the evidence required under paragraph (a) of this section.

(d) Where death occurs abroad, by a United States consular report of death, bearing the signature and official seal of the United States consul, or, except as provided in § 3.32 (a) (2) (iv), by a certified copy of the public record of death authenticated by the United States consul or other agency of the State Department: Provided, That where the deceased person was at the time of death a civilian employee of the United States Army, Air Force, Navy, Marine Corps, or Coast Guard, an official report of death will be obtained from the Department of the Army, Air Force, Navy, or Treasury Department.

(e) If the evidence called for in paragraphs (a) through (d) of this section cannot be obtained, the reason must be shown. If such reason is satisfactory, the fact of death may be established by the affidavit of persons who have personal knowledge thereof and have viewed the body of the deceased and know it to be the body of the person whose death is being established, setting forth all the

facts and circumstances concerning the death, including the place, date, time and cause thereof.

(f) In cases wherein proof of death, as defined in paragraphs (a) to (e), inclusive, of this section cannot be furnished, the director, claims service, in district office cases, the adjudication officer, in regional office cases, or the chief, dependents claims division, in cases under the jurisdiction of Veterans Benefits Office, District of Columbia, may make a finding of fact of death where death is otherwise shown by competent evidence. Where it is indicated that the veteran died under circumstances which precluded recovery or identification of the body, the fact of death should be established by the best evidence, which from the nature of the case must be supposed to exist.

[13 F. R. 7014, Nov. 27, 1948, as amended at 17 F. R. 7148, Aug. 6, 1952; 18 F. R. 1388, Mar. 11, 1953; 20 F. R. 10112, Dec. 30, 1955]

§3.57 Conditions which determine dependency-(a) Definitions. Dependency will be held to exist if the father or mother of the veteran does not have an income sufficient to provide reasonable maintenance for such father or mother and members of his or her family under legal age and for dependent adult members of the family if the dependency of such adult member results from mental or physical incapacity. "Reasonable maintenance" includes not only housing, food, clothing, and medical care sufficient to sustain life, but such items beyond the bare necessities, and as well as other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with the parents' reasonable mode of life. "Members of the family" will be considered to mean those persons, including relatives in the ascending as well as descending class, whom the father or mother is under moral or legal obligation to support.

(b) Sources of income. (1) In determining the amount of income, consideration will be given to (i) net income from property owned, or business operated, by the mother or father; (ii) earnings of the mother or father and other members of their family under legal age; (iii) actual contributions of any character to the family expenses by the adult members; (iv) so-called social security benefits, i. e., old age assistance and old age and survivors' insurance; (v) family

allowances received pursuant to Public Law 351, 81st Congress, as amended.

(2) In determining whether other members of the family under legal age are factors in necessary expenses of the mother or father, consideration will be given to any income from business or property (including trusts) actually available, directly or indirectly, to the mother or father for the support of the minor but not to the corpus of the estate or the income of the minor which is not so available.

(3) In determining dependency, amounts received from the following named sources, by the father or mother or other member of the family, will be disregarded, viz., (i) as designated beneficiary or otherwise of any insurance under the War Risk Insurance Act, the World War Veterans' Act, 1924, as amended, or the National Service Life Insurance Act, or any amendments to either; (ii) any pension or compensation under laws administered by the Veterans Administration; (iii) benefits under the World War Adjusted Compensation Act or the Adjusted Compensation Payment Act, or any amendments to either; (iv) the 6-month pay made to the designated beneficiary thereof pursuant to 10 U. S. C. 903, 903 (a), and 456; 34 U. S. C. 943 and 944; 50 U. S. C. 975; (v) payments pursuant to Mustering-Out Payment Act of 1944 (Public Law 225, 78th Cong.); (vi) donations or assistance from charitable sources; (vii) payments of servicemen's indemnity under Public Law 23, 82d Congress; (viii) annuities received under the Uniformed Services Contingency Option Act of 1953 (Public Law 239, 83d Cong.).

(4) In addition to considering income of a father or mother, consideration will be given to the corpus of such claimant's estate if under all the circumstances it is reasonable that the same or some part thereof be sold and the proceeds consumed for the claimant's maintenance.

(c) Contributions by veteran. The fact that the veteran has made habitual contributions to his father or mother, or both, is not conclusive evidence that dependency existed but shall be considered in connection with all other evidence.

(d) Remarriage of parent. The remarriage of a mother or father does not, per se, bar entitlement but is prima facie evidence that dependency has ceased. See § 4.62 of this chapter.

(e) Prima facie dependency. (1) In the absence of evidence indicating the contrary, dependency will be held to exist when the monthly income from sources proper to consider does not exceed:

(i) $105 for a mother or father (not living together).

(ii) $175 for a mother and father (living together).

(iii) The amounts stated in subdivision (i) or (ii) of this subparagraph plus $45 for each additional member of the family whose support is to be considered under the criteria indicated in paragraphs (a) and (b) of this section. It must be definitely understood that the amounts stated are not controlling in any case but are to be used only as prima facie evidence. Each claim is subject to adjudication upon the facts thereof in the light of the governing legal principles summarized in this section. The monetary guides in this paragraph are not for application in a foreign country. [17 F. R. 7855, Aug. 28, 1952, as amended at 20 F. R. 10112, Dec. 30, 1955]

DETERMINATIONS AS TO HELPLESSNESS OF CHILDREN

§ 3.58 Conditions which determine helplessness. (a) For the purpose of the laws authorizing the payment of compensation or pension, the term "helpless child" shall mean a child who was permanently incapable of self-support by reason of physical or mental defect at the date of attaining the age of 16 or 18 years, whichever is applicable, and at the date of filing claim. The requirement that a child be "insane, idiotic, or otherwise mentally or physically helpless" as a prerequisite to the continuance of benefits after a child attains the age of 16 years will be considered as having been met when the evidence shows that the child is permanently incapable of self-support by reason of physical or mental defect.

(b) The question of helplessness is one of fact for determination by the rating agency on competent evidence of record in the individual case. Rating criteria applicable to disabled veterans are not controlling. Principal factors for consideration are:

(1) The fact that a child is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for selfsupport will not be considered to exist

when the child by his or her own efforts is provided with sufficient income for his or her reasonable support and maintenance, depending on the circumstances in each individual case.

(2) Capacity for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involves no actual or substantial rendition of services.

(3) A child shown by proper evidence to have been permanently incapable of self-support prior to the delimiting age may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapability is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, try-out, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established.

(4) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of selfsupport, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical and mental capacity of the child which would provide sufficient income for reasonable support and maintenance. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends.

(Sec. 4, 41 Stat. 586, secs. 2, 44 Stat. 382, as amended, 1362, as amended, 58 Stat. 186,

395043-57- -6

Par. VI, Vet. Reg. 10, as amended; 38 U. S. C. 288, 364a, 381a, 37, ch. 12A) [16 F. R. 1593, Feb. 15, 1951] DETERMINATIONS AS TO BASIC ENTITLEMENT

§ 3.59 Active service under Public No. 2, 73d Congress. (a) In determining rights pursuant to Veterans' Regulation 1 (a), as amended (38 U. S. C. ch. 12A), active service shall be accepted as exclusive of unauthorized leave of absence which materially interferes with the performance of military duties or of periods of agricultural, industrial, or indefinite furlough. The definition of “active service" shall be subject to the provisions of paragraphs VIII and IX, Veterans' Regulation No. 10, as amended by Public No. 648, 75th Congress, and Public Law 439, 78th Congress, as they relate to "misconduct" and the definition of "line of duty."

(b) Service for 90 days or more, required by paragraph I (c), Part I, and service for 6 months or more, required by paragraph I (b), Part II, Veterans Regulation 1 (a) (38 U. S. C. ch. 12A), will mean continuous, active service, as defined in paragraph (a) of this section; during one or more enlistment periods. For the purpose of Part I, Veterans Regulation 1 (a), as amended, such active service must have been during an enlistment or enlistments shown to have begun prior to the termination of a service period specified by Part I, Veterans Regulation 1 (a), as amended by Public Law 239, 84th Congress. The service requirements in claims for pension for disabilities not the result of service are defined in paragraph I (d), Part III, Veterans Regulation 1 (a), and paragraph 3, Veterans Regulation 1 (c), as modified by Public Law 344, 74th Congress. Under Public Law 239, 84th Congress, the service requirements are continuous service extending into or commencing during the period between June 27, 1950, and January 31, 1955, inclusive. A veteran in active service on April 6, 1917, December 7, 1941, or June 27, 1950, who was discharged therefrom without serving 90 days during World War I, World War II, or the Korean conflict, respectively, will be given, if otherwise in order, the benefit of the provisions of paragraph I (c), Part I, Veterans Regulation 1 (a), if he had 90 days' continuous service.

(c) The period of active service of the members of the regular components of the Philippine Commonwealth Army while serving with the Armed Forces of

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the United States will be from the date certified by the Armed Forces as the date of enlistment or the date of report for active duty, whichever is the later, to the date of release from active duty, discharge, death, or June 30, 1946, whichever is the earlier. The release from active duty will include (1) leaving one's organization in anticipation of or due to the capitulation; (2) escape from a prisoner-of-war status; (3) parole by the Japanese from a prisoner-of-war status; (4) beginning of missing-inaction status, except where the factual recitation of the service department establishes that the veteran at the time he was so reported was actually in active service with his unit, or under the provisions of section 5, Public Law 490, 77th Congress, as amended, death is presumed to have occurred while the veteran's name was carried in such status; (5) the capitulation on May 6, 1942, except that periods of recognized guerrilla service or unrecognized guerrilla service under a recognized commissioned officer or periods of service in units which continued organized resistance against the Japanese prior to formal capitulation will be considered as a return to active duty for the period of such service. Active service of a Philippine Scout or a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, will include a "Prisoner-of-war" status immediately following: (i) A period of active duty; (ii) recognized guerrilla service or unrecognized guerrilla service under a recognized commissioned officer; (iii) a period of inactive service as defined in § 3.1 (c) and this paragraph, where it is shown by all the evidence, including service department reports establishing the basis of the affirmative finding of the service department, that the veteran's arrest by the Japanese was brought about by reason of antiJapanese activities or his former service in the Armed Forces of the United States. In this connection due consideration will be given to the character and length of the veteran's former active service in the Armed Forces of the United States. A prisoner-of-war status based upon arrest during a general zonification will not be sufficient of itself to bring a case within the definition of return to military control. The active service of members of the irregular forces, "guerrillas," will be

that period covered by the certification of the Armed Forces.

[13 F. R. 7015, Nov. 27, 1948, as amended at 19 F. R. 6917, Oct. 28, 1954; 20 F. R. 7876, Oct. 19, 1955]

§ 3.60 Active service requirements of Part III, Veterans Regulation 1 (a) (38 U. S. C. ch. 12A). Where the military service extended into or beyond the period of hostilities, there must be 90 days' continuous service so extending or a discharge prior to service of 90 days on account of disability incurred in or aggravated by service in line of duty without benefit of presumptive provisions of the law or regulations in order to meet the requirements of Part III, Veterans Regulation 1 (a), as amended, but the requirements of active service for a total of 90 days or more during one of the enumerated wars or during the Korean conflict can be composed of two or more periods of service, if all such periods are within the war period. Service is exclusive of the furloughs enumerated in § 3.59, time under arrest, in the absence of acquittal, time for which the soldier or sailor was determined to have forfeited pay by reason of absence without leave, and time spent in desertion or while undergoing sentence of court-martial. Time in a hospital, on sick furlough, or as a prisoner by the enemy is included. (Part III, Vet. Reg. 1 (a); 38 U. S. C. ch. 12A) [20 F. R. 7876, Oct. 19, 1955]

§ 3.61 Validity of enlistment a prerequisite to entitlement-(a) Fraudulent enlistments involving other than concealment of minority. With the exception of illegal enlistments, that is, those in which the individual lacks legal capacity to contract, contracts of enlistment fraudulently procured by enlisted persons are generally voidable rather than void. Such voidable contracts fall into two categories, (1) those prohibited by statute (the enlistment of a deserter or one who has been convicted of a felony-10 U. S. C. 622) and (2) those enlistments fraudulently entered into which do not fall within the foregoing statutory prohibition but serve as the basis of avoidance of the contract and the granting of an undesirable discharge. Contracts of enlistment falling within the purview of subparagraph (1) of this paragraph which are affirmatively voided by the service department confer no entitlement to compensation or pension, notwithstanding it be established the disability was incurred while actually

performing service pursuant to the enlistment which subsequently was avoided. In such cases the granting of an undesirable discharge, upon discovery of the fraud, operates as an affirmative avoidance of the contract by the service department and renders such contract void from its inception. For example, a veteran in desertion who reenlisted and served honorably is not barred from pension, if otherwise entitled by reason of his honorable service, unless the reenlistment was affirmatively voided by the service department. Hence, where there was no legal capacity to contract as in the case of an insane person and where the enlistment of one prohibited by statute from enlisting is rescinded for fraud in such enlistment, a valid enlistment contract may not be said to have been in existence for compensation and pension purposes. As to contracts of enlistment within the purview of subparagraph (2) of this paragraph, the contracts are valid from the date of entry upon active duty to the date of voidance by the service department and may serve as bases of entitlement to pension (War or Pub. Law 28, 82d Cong. service), and to disability compensation for disability incurred or aggravated during such service, provided the discharge or release from active service is held to be under other than dishonorable conditions. Generally, discharge for concealment of a condition which would have prevented enlistment will be held to be under dishonorable conditions. The preceding sentence is not applicable to conditions other than physical.

(b) Misrepresentation of age. Public No. 467, 74th Congress (March 3, 1936), provides that in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows, and dependent children, a soldier who served as an enlisted man between April 6, 1917, and November 11, 1918, both dates inclusive, and who was discharged for fraudulent enlistment on account of minority or misrepresentation of age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom if his service otherwise was such as would have entitled him to an honorable discharge. These provisions of Public No. 467, 74th Congress, are extended by Public Law 412, 76th Congress (February 9,

1940), to discharged sailors of the United States Navy and discharged marines of the United States Marine Corps, their widows and dependent children. Public No. 108, 75th Congress, provides that a person who enlisted in the Army between April 21, 1898, and July 4, 1902, both dates inclusive, and who was discharged for fraudulent enlistment on account of minority or misrepresentation of age shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom, if his service otherwise was such as would have entitled him to an honorable discharge. The determination whether the veteran should be considered to have been honorably discharged under the several provisions of this section will be made by the appropriate service department and such determination will be binding on the Veterans' Administration. The fact that the service department has stated that an enlistment is void ab initio, and canceled same because of misrepresentation of age, does not deprive a veteran or his dependents of benefits to which he or they are otherwise entitled under Public No. 2, 73d Congress, as amended. [14 F. R. 570, Feb. 9, 1949, as amended at 18 F. R. 2024, Apr. 10, 1953]

§ 3.62 Eligibility of persons discharged to accept a commission or to change status. The discharge of a service person to accept appointment as a commissioned or warrant officer, or from a reserve or regular commission to accept a commission in the other component, or to reenlist, prior to the date set forth in paragraph (a) or (b) of this section whichever is applicable, is a qualified and conditional discharge and does not constitute a termination of the person's war service for compensation and pension purposes. The entire service in such case constitutes one period of service, and the conditions of final termination of active service will govern and determine basic eligibility to compensation or pension.

(a) World War I-Prior to November 11, 1918.

(b) World War II and Korean conflict-Prior to the date the service person was eligible for discharge from war or Korean conflict service, under the point or length of service system, or under any other criteria in effect. The foregoing principles are applicable to