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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: April 4, 2003 (Volume 68, Number 65)]
[Rules and Regulations]               
[Page 16415-16427]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap03-7]                         

=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 408

[Regulation No. 8]
RIN 0960-AF61

 
Special Benefits for Certain World War II Veterans

AGENCY: Social Security Administration (SSA).

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: We are adding to our regulations a new part 408 that sets 
forth our rules applicable to claims for special veterans benefits 
(SVB) under title VIII of the Social Security Act (the Act). The title 
VIII program was effective in May 2000 and provides monthly benefits to 
certain World War II (WWII) veterans who were previously eligible for 
supplemental security income (SSI) payments under title XVI of the Act 
and reside outside the United States. These final rules include five 
new subparts that describe: what the new part is about, how we 
determine whether you qualify for and are entitled to SVB, how you file 
for SVB, how we evaluate evidence under the SVB program, and how we 
compute and pay SVB.
    In addition to these subparts, we are developing additional 
proposed subparts describing other aspects of the title VIII program 
that we will publish at a later date.

EFFECTIVE DATES: These regulations are effective May 5, 2003.

FOR FURTHER INFORMATION CONTACT: Robert J. Augustine, Office of 
Regulations, Social Security Administration, 100 Altmeyer Building, 
6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-0020 or 
TTY (410) 966-5609. For information on eligibility or filing for 
benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-
800-325-0778 or visit our Internet site, Social Security Online, at 
http://www.ssa.gov.

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register on the internet site for the 
Government Printing Office: http://www.access.gpo.gov/sudocs/aces/aces140.html.
 It is also available on the Internet site for SSA (i.e., 
Social Security Online) at http://www.ssa.gov/regulations.

SUPPLEMENTARY INFORMATION:

Statutory Provisions

    Section 251 of the Foster Care Independence Act of 1999 (Pub. L. 
106-169), enacted on December 14, 1999, added a new title VIII to the 
Act (Special Benefits for Certain World War II Veterans). Title VIII 
authorizes SSA to pay special veterans benefits (SVB) to certain WWII 
veterans who reside outside the United States. Establishing SVB 
entitlement is a two-step process: first, you need to show that you 
meet certain qualifying requirements; once we determine that you 
qualify for SVB, you will be entitled to SVB payments after you begin 
residing outside the United States.

How to Qualify for SVB

    Section 802 of the Act provides that, in order to be entitled to 
SVB, you must first establish that you are a ``qualified individual.'' 
You qualify for SVB if you file an application for SVB and are:
    [sbull] Age 65 on or before December 14, 1999 (the date the title 
VIII program was enacted);
    [sbull] A WWII veteran;
    [sbull] Eligible for SSI for both December 1999 (the month of 
enactment) and the month you file your application for SVB; and
    [sbull] Receiving total monthly benefit income from other sources 
that is less than 75 percent of the Federal benefit rate (FBR) under 
SSI (title XVI of the Act).
    However, even if you meet all the above requirements, section 804 
of the

[[Page 16416]]

Act specifies certain conditions that will still prevent you from 
qualifying for SVB or, if you have already qualified for SVB, will 
prevent us from paying you benefits. Specifically, the following events 
will prevent you from qualifying for or receiving SVB:
    [sbull] Removal (including deportation) from the United States 
under section 237(a) or 212(a)(6)(A) of the Immigration and Nationality 
Act.
    [sbull] Flight to avoid prosecution, or custody or confinement 
after conviction, for a crime or an attempt to commit a crime that is a 
felony under the laws of the United States or the jurisdiction of the 
United States from which you fled or, in the case of the State of New 
Jersey, is a high misdemeanor.
    [sbull] Violation of a condition of probation or parole imposed 
under Federal or State law.
    [sbull] Residence in a country to which payments are withheld by 
the Treasury Department under 31 U.S.C. 3329.

WWII Veteran Status

    As explained above, section 802 of the Act specifies that you must 
be a WWII veteran to qualify for SVB. Section 812(1) of the Act defines 
a WWII veteran as a person who served during WWII in:
    [sbull] The active military, naval, or air service of the United 
States during the period beginning on September 16, 1940 and ending on 
July 24, 1947; or
    [sbull] The organized military forces of the Government of the 
Commonwealth of the Philippines, while the forces were in the service 
of the U.S. Armed Services under the military order of the President 
dated July 26, 1941, including organized guerrilla forces under 
commanders appointed by the Commander in Chief, Southwest Pacific Area, 
or other competent authority in the U.S. Army. This service must have 
been rendered at any time during the period beginning July 26, 1941 and 
ending on December 30, 1946.

In addition to meeting either of these requirements, you must have been 
discharged or released from this service under conditions other than 
dishonorable after serving at least 90 days or, if your service was 
less than 90 days, because of a disability or injury incurred or 
aggravated in the line of active duty.

How We Evaluate Evidence

    Sections 806 and 810 of the Act authorize us to establish rules 
about the kinds of information you must give us to show that you 
qualify for SVB and that you are entitled to receive benefits. Section 
806 also specifies that we cannot pay you SVB based only on your 
statements about whether you qualify for benefits. Instead, you must 
give us documents or other evidence that we will verify with 
independent sources.

How We Calculate and Pay SVB

    Section 805 of the Act specifies that your monthly SVB payment is 
equal to 75 percent of the Federal benefit rate (FBR) under title XVI 
of the Act, reduced by the amount of any other benefit income you 
receive for that month. As used in title VIII, ``other benefit income'' 
means any recurring payments you receive such as an annuity, pension, 
retirement, or disability benefit, but only if you received a similar 
payment from the same (or a related) source during the 12-month period 
before the month you file an application for SVB.

Applying for SVB

    As indicated above, section 802 of the Act requires you to file an 
application in order to establish that you qualify for SVB. Section 806 
of the Act authorizes SSA to prescribe the requirements for filing such 
an application. In order to maintain consistency throughout the benefit 
programs we administer, we have attempted, where possible, to use the 
same requirements we use for filing applications under the titles II 
and XVI programs. These rules were established in order to ensure that 
individuals have every reasonable opportunity to file a claim for 
benefits at the earliest possible time without loss of benefits, and we 
believe those same considerations apply to claims for title VIII 
benefits.

Explanation of New Part 408

    New part 408 will initially consist of 5 subparts. (As indicated 
above, we will propose additional subparts in a subsequent notice of 
proposed rulemaking (NPRM).) Following is a list of each subpart that 
includes a brief description of the contents of each section in the 
subpart.

Subpart A (Introduction, General Provision and Definitions)

    [sbull] Section 408.101 introduces the title VIII program and 
contains a list of each subpart in part 408, and gives a brief 
description of the topics covered in those subparts.
    [sbull] Section 408.105 briefly explains the purpose of the title 
VIII program and that the program is administered by SSA.
    [sbull] Section 408.110 defines certain terms that are used 
throughout part 408.
    [sbull] Section 408.120 explains how we calculate time periods in 
which you must take a required action under the SVB program when they 
end on a day, any part of which is a nonworkday for Federal employees. 
This is the same as the rule we use under both the title II and title 
XVI programs.

Subpart B (SVB Qualification and Entitlement)

    As explained above, you must meet certain requirements to qualify 
for SVB (i.e., you must be age 65 on or before December 14, 1999, a 
WWII veteran, SSI eligible for December 1999 and the month in which you 
file for SVB, not receiving other benefit income that is 75% or more of 
the SSI FBR, and you must file an application for SVB). In addition, 
even if you meet these requirements, certain other conditions will 
prevent you from qualifying for SVB or, if you are already qualified, 
will prevent us from making SVB payments to you. Subpart B discusses 
these qualifying and entitlement requirements. Specifically:
    [sbull] Section 408.201 describes what subpart B is about and gives 
a general explanation of how you qualify for and establish entitlement 
to SVB payments.
    [sbull] Section 408.202 gives a list of the specific requirements 
you must meet to qualify for SVB.
    [sbull] Section 408.204 describes the conditions that will prevent 
you from qualifying for SVB or prevent you from being entitled to 
receive SVB payments even if you meet the requirements in Sec.  
408.202.
    [sbull] Section 408.206 explains that when you apply for SVB, we 
will first determine if you qualify for benefits. If you do not 
qualify, we will deny your claim. If you do qualify, we will send you a 
written notice of qualification that explains you have 4 calendar 
months after the date of the notice in which to begin residing outside 
the U.S. or we will deny your claim. If you begin residing outside the 
U.S. within that 4-month period, your SVB payments will begin with the 
first full month in which you resided outside the U.S. on the first day 
of the month.
    [sbull] Section 408.208 explains that, if you begin residing 
outside the U.S. within 4 calendar months after the date of the written 
notice of SVB qualification, we will send you a notice of SVB 
entitlement, including the date your entitlement begins, the amount of 
your monthly SVB payment, and the amount of any reduction in your 
payment because you are receiving other benefit income.
    [sbull] Section 408.210 explains that if you do not begin residing 
outside the U.S. within 4 calendar months after the date of the written 
notice of SVB qualification, we will deny your SVB claim.

[[Page 16417]]

    [sbull] Section 408.212 explains what happens if you are residing 
outside the U.S. at the time you file for SVB. If you meet all the 
requirements for qualification and none of the SVB disqualifying events 
applies to you, we will ask you for evidence of your residence outside 
the U.S. After your foreign residence is established, we will send you 
a notice of SVB entitlement, including the date your entitlement 
begins, the amount of your monthly SVB payment, and the amount of any 
reduction in your payment because you are receiving other benefit 
income.
    [sbull] Section 408.214 explains that, in order to qualify for SVB, 
you must have been age 65 on or before December 14, 1999.
    [sbull] Section 408.216 explains the service and discharge 
requirements you must meet to be considered to be a WWII veteran.
    [sbull] Section 408.218 explains what we mean by eligible for SSI. 
Under this section, anyone whose SSI eligibility has not been 
terminated or whose SSI benefits are not subject to a penalty under 
Sec.  416.1340 of our SSI regulations will be considered to be eligible 
for SSI, whether or not the person is actually receiving SSI payments.
    [sbull] Section 408.220 explains what we mean by ``other benefit 
income'' and includes examples of payments we consider to be ``other 
benefit income.'' It also explains that your other benefit income will 
only affect your entitlement to SVB if you received a similar payment 
from the same or a related source at any time during the 12-month 
period before you file for SVB.
    [sbull] Section 408.222 explains how your other benefit income 
affects SVB qualification and the amount of your SVB payment. If you 
are receiving other benefit payments when you file for SVB, we will 
deny your claim if these payments equal or exceed 75 percent of the FBR 
payable to individual SSI recipients with no income; otherwise we will 
reduce your monthly SVB payment by the amount of the other benefit 
income you receive in that month.
    [sbull] Section 408.224 explains how we determine the monthly 
payment of your other benefit income if the payments are not made on a 
monthly basis.
    [sbull] Section 408.226 explains that, once you begin receiving 
SVB, we will reduce your SVB payments if you begin receiving additional 
other benefit income, but only if you received similar benefits from 
the same or a related source during the 12-month period before you 
applied for SVB.
    [sbull] Section 408.228 explains when we will consider you to be 
residing outside the U.S. It also explains that, for SVB purposes, you 
can be a resident of only one country at a time.
    [sbull] Section 408.230 explains when you must establish residence 
outside the U.S. Under the rulemaking authority provided by the law, we 
propose to establish a 4-month time limit within which you need to 
establish residence outside the U.S. Generally, the 4-month period 
would begin with the month after the month in which the notice that you 
qualify for SVB is dated. However, this section also explains that we 
will extend the 4-month period if you are in the U.S. to appeal a 
decision on your title VIII claim or on a title II and/or a title XVI 
claim that affects your SVB qualification. We believe this 4-month time 
period takes into account the fact that you generally need to be 
residing in the U.S. in order to be SSI eligible (and therefore are 
residing in the U.S. when you apply for SVB) but still gives you 
sufficient time in which to make arrangements to leave the U.S. and to 
begin residing outside the U.S.
    [sbull] Section 408.232 explains that you lose your foreign 
resident status and we will stop paying you SVB if you enter the U.S. 
and stay here for more than 1 full calendar month. We will not resume 
your SVB payments until you establish that you are again residing 
outside the U.S. In recognition of the fact that many individuals 
receiving SVB benefits may wish to return to the U.S. for short periods 
(e.g., to visit friends or relatives), we propose to permit them to 
continue receiving SVB while in the U.S. provided they do not stay in 
the U.S. for more than 1 full calendar month.
    [sbull] Section 408.234 explains that you may continue to receive 
SVB payments even if you are in the U.S. for more than 1 full calendar 
month if you are prevented from returning to your home abroad by 
circumstances beyond your control or you are in the U.S. to appeal an 
SSA decision on a claim filed under title II, VIII, or XVI of the Act.

Subpart C (Filing Applications)

    This subpart contains our rules on filing applications under the 
SVB program. Specifically:
    [sbull] Section 408.301 explains what subpart C is about.
    [sbull] Section 408.305 explains that you must file an application 
to receive SVB.
    [sbull] Section 408.310 explains what makes an application a claim 
for SVB.
    [sbull] Section 408.315 explains that you must file your own 
application for SVB unless you are mentally incompetent or physically 
unable to sign your own application. In that case, certain other 
individuals may sign the application on your behalf.
    [sbull] Section 408.320 explains the kinds of evidence an 
individual must give us to show that he or she has authority to sign an 
application on your behalf.
    [sbull] Section 408.325 explains when we consider you to have filed 
your application.
    [sbull] Section 408.330 explains how long your application for SVB 
will remain in effect.
    [sbull] Section 408.340 explains when we will use the date of a 
written statement as your application filing date.
    [sbull] Section 408.345 explains the circumstances under which we 
will establish your filing date based on an oral inquiry about 
qualifying for SVB.
    [sbull] Section 408.351 explains the circumstances under which we 
will establish your filing date if we give you misinformation about 
qualifying for SVB.
    [sbull] Section 408.355 explains what happens if you request to 
withdraw your application for SVB.
    [sbull] Section 408.360 explains how you can cancel your request to 
withdraw your application for SVB.

Subpart D (Evidence Requirements)

    Subpart D sets forth the rules we will use to evaluate evidence 
under the title VIII program. Specifically:
    [sbull] Section 408.401 explains that, in addition to your 
statements, we may need documentary evidence to confirm that you meet 
all the SVB qualification requirements and ensure that we pay you the 
correct amount of benefits.
    [sbull] Section 408.402 explains when you need to give us evidence.
    [sbull] Section 408.403 explains where you should give us the 
evidence we need to process your SVB claim.
    [sbull] Section 408.404 explains if you fail to give us evidence we 
need in connection with your claim by a specified date, we may decide 
you do not qualify for SVB or, if you are already receiving SVB, we may 
stop or reduce your payments until we receive the necessary evidence. 
This section also explains when we will give you more time to give us 
the evidence.
    [sbull] Section 408.405 explains that when you need to give us 
evidence to establish that you qualify for SVB or may continue 
receiving SVB payments, the evidence must be an original document or 
record or a certified copy of the original document or record. In the 
case of certified copies, this section also includes a list of the 
people who may certify the document or record to be a true and exact 
copy of the original. The section also explains that when you give us 
an original record, we will

[[Page 16418]]

photocopy it and return the original record to you.
    [sbull] Section 408.406 explains how we evaluate the evidence you 
give us.
    [sbull] Section 408.410 explains that you must submit evidence of 
your age to qualify for SVB unless we have already established your age 
in connection with a claim for benefits under title II or title XVI of 
the Act.
    [sbull] Section 408.412 explains what kinds of documents you need 
to give us to show that you were born on or before December 15, 1934.
    [sbull] Section 408.413 explains how we evaluate the evidence of 
age you give us.
    [sbull] Section 408.420 explains that your evidence of WWII service 
must show your name, your branch of service, the dates of your service, 
your military service number, the character of your discharge and, if 
you were in the organized military forces (including organized 
guerrilla forces) of the Government of the Commonwealth of the 
Philippines, that your service is considered to have been in the 
service of the U.S. Armed Forces. This section also explains the kind 
of evidence you can give us to show you are a WWII veteran.
    [sbull] Section 408.425 explains that we will use our data records 
to determine your SSI eligibility.
    [sbull] Section 408.430 explains that we need evidence of your 
other benefit income if the income is less than 75 percent of the FBR.
    [sbull] Section 408.432 explains what is evidence of your other 
benefit income.
    [sbull] Section 408.435 explains the evidence you need to give us 
to show that you are residing outside the U.S.
    [sbull] Section 408.437 explains the evidence you need to give us 
to show that you had good cause for remaining in the U.S. for more than 
one full month after you begin receiving SVB. It includes a description 
of the kinds of evidence you can give to show both that you made a good 
faith effort to return to your home abroad and the circumstances that 
prevented you from doing so.

Subpart E (Amount and Payment of Benefits)

    Subpart E explains how we determine the amount of and pay SVB. 
Specifically:
    [sbull] Section 408.501 explains what subpart E is about.
    [sbull] Section 408.505 explains that the maximum SVB payment is 
equal to 75 percent of the SSI FBR for an individual with no income. It 
explains that whenever there is a cost-of-living allowance (COLA) 
increase in the FBR, we will increase your SVB to reflect the COLA 
increase. It also explains that we will reduce the maximum SVB payable 
by the amount of your other benefit income.
    [sbull] Section 408.510 explains that, when you are receiving other 
benefit income, we do not round the amount of your SVB payment. This 
section also explains that the minimum SVB payable is $1.00.
    [sbull] Section 408.515 explains that we make SVB payments on the 
first day of the month for which they are due. We also explain that 
when the first day of the month is a Saturday, Sunday, or Federal legal 
holiday, we will make your payment on the first preceding day that is 
not a Saturday, Sunday or Federal legal holiday.

Public Comments

    On August 30, 2002, we published an NPRM in the Federal Register at 
67 FR 55744 and provided a 60-day period for interested individuals and 
organizations to comment on the proposed rules. We received only the 
following comment from an individual.
    Comment: The commenter recommends that we revise Sec.  408.420, 
which deals with evidence of military service, to specify that we will 
accept only such evidence from a United States Government source.
    Response: We are adopting this comment. In order to qualify for 
benefits, the applicant must be a World War II (WWII) veteran as 
described in Sec.  408.216. That section provides, in part, that a WWII 
veteran is someone who served in the U.S. Armed Forces or in the 
military forces of the Commonwealth of the Philippines, while those 
forces were in the service of the U.S. Armed Forces. Since the 
requirement is service in the U.S. Armed Forces or Philippine forces 
that were in service to the U.S. Armed Forces, it is appropriate that 
evidence of such service is acceptable only if it is issued by a U.S. 
Government agency. We have revised Sec.  408.420 accordingly.
    We have also made some editorial changes for purposes of 
clarification. We have not made any additional substantive changes to 
the NPRM.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these final rules do not meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order 13258. Thus, they were not subject to OMB review.

Regulatory Flexibility Act

    We certify that these final rules will not have a significant 
impact on a substantial number of small entities because they affect 
only individuals filing for benefits under title VIII of the Act. 
Therefore, a regulatory flexibility analysis, as provided for in the 
Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    These final rules contain information collection requirements in 
subparts B, C, and D of part 408 that require clearance from OMB. These 
requirements were approved by OMB under OMB No. 0960-0658, which 
expires on November 30, 2005.

(Catalog of Federal Domestic Assistance Program No. 96.020, Special 
Benefits for Certain World War II Veterans)

List of Subjects in 20 CFR Part 408

    Administrative practice and procedure, Aged, Reporting and 
recordkeeping requirements, Social security, Special veterans benefits, 
Veterans.

    Dated: March 27, 2003.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are adding a new part 408 
to chapter III of title 20 of the Code of Federal Regulations as 
follows:

PART 408--SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS

Subpart A--Introduction, General Provision and Definitions

Sec.
408.101 What is this part about?
408.105 Purpose and administration of the program.
408.110 General definitions and use of terms.
408.120 Periods of limitations ending on Federal nonworkdays.

Subpart B--SVB Qualification and Entitlement

408.201 What is this subpart about?
408.202 How do you qualify for SVB?
408.204 What conditions will prevent you from qualifying for SVB or 
being entitled to receive SVB payments?
408.206 What happens when you apply for SVB?
408.208 What happens if you establish residence outside the United 
States within 4 calendar months?
408.210 What happens if you do not establish residence outside the 
United States within 4 calendar months?
408.212 What happens if you are a qualified individual already 
residing outside the United States?

[[Page 16419]]

Age

408.214 Are you age 65?

Military Service

408.216 Are you a World War II veteran?

SSI Eligibility

408.218 Do you meet the SSI eligibility requirements?

Other Benefit Income

408.220 Do you have other benefit income?
408.222 How does your other benefit income affect your SVB?
408.224 How do we determine the monthly amount of your other benefit 
income?
408.226 What happens if you begin receiving other benefit income 
after you become entitled to SVB?

Residence Outside the United States

408.228 When do we consider you to be residing outside the United 
States?
408.230 When must you begin residing outside the United States?
408.232 When do you lose your foreign resident status?
408.234 Can you continue to receive SVB payments if you stay in the 
United States for more than 1 full calendar month?

Subpart C--Filing Applications

Filing Your Application

408.301 What is this subpart about?
408.305 Why do you need to file an application to receive benefits?
408.310 What makes an application a claim for SVB?
408.315 Who may sign your application?
408.320 What evidence shows that a person has authority to sign an 
application for you?
408.325 When is your application considered filed?
408.330 How long will your application remain in effect?

Filing Date Based on Written Statement or Oral Inquiry

408.340 When will we use a written statement as your filing date?
408.345 When will we use the date of an oral inquiry as your 
application filing date?

Deemed Filing Date Based on Misinformation

408.351 What happens if we give you misinformation about filing an 
application?

Withdrawal of Application

408.355 Can you withdraw your application?
408.360 Can you cancel your request to withdraw your application?

Subpart D--Evidence Requirements

General Information

408.401 What is this subpart about?
408.402 When do you need to give us evidence?
408.403 Where should you give us your evidence?
408.404 What happens if you fail to give us the evidence we ask for?
408.405 When do we require original records or copies as evidence?
408.406 How do we evaluate the evidence you give us?

Age

408.410 When do you need to give us evidence of your age?
408.412 What kinds of evidence of age do you need to give us?
408.413 How do we evaluate the evidence of age you give us?

Military Service 408.420 What evidence of World War II military service 
do you need to give us?

SSI Eligibility

408.425 How do we establish your eligibility for SSI?

Other Benefit Income

408.430 When do you need to give us evidence of your other benefit 
income?
408.432 What kind of evidence of your other benefit income do you 
need to give us?

Residence

408.435 How do you prove that you are residing outside the United 
States?
408.437 How do you prove that you had good cause for staying in the 
United States for more than 1 full calendar month?

Subpart E--Amount and Payment of Benefits

408.501 What is this subpart about?
408.505 How do we determine the amount of your SVB payment?
408.510 How do we reduce your SVB when you receive other benefit 
income?
408.515 When do we make SVB payments?
Subpart A--Introduction, General Provision and Definitions

    Authority: Secs. 702(a)(5) and 801-813 of the Social Security 
Act (42 U.S.C. 902(a)(5) and 1001-1013).


Sec.  408.101  What is this part about?

    The regulations in this part 408 (Regulation No. 8 of the Social 
Security Administration) relate to the provisions of title VIII of the 
Social Security Act as added by Pub. L. 106-169 enacted December 14, 
1999. Title VIII (Special Benefits for Certain World War II Veterans) 
established a program for the payment of benefits to certain World War 
II veterans. The regulations in this part are divided into the 
following subparts according to subject content.
    (a) Subpart A contains this introductory section, a statement of 
the general purpose underlying the payment of special benefits to World 
War II veterans, general provisions applicable to the program and its 
administration, and defines certain terms that we use throughout part 
408.
    (b) Subpart B contains the requirements for qualification and 
entitlement to monthly title VIII benefits.
    (c) Subpart C contains the provisions relating to the filing and 
withdrawal of applications.
    (d) Subpart D contains the provisions relating to the evidence 
required for establishing qualification for and entitlement to monthly 
title VIII benefits.
    (e) Subpart E contains the provisions about the amount and payment 
of monthly benefits.


Sec.  408.105  Purpose and administration of the program.

    The purpose of the title VIII program is to assure a basic income 
level for certain veterans who are entitled to supplemental security 
income (SSI) and who want to leave the United States to live abroad. 
The title VIII program is administered by the Social Security 
Administration.


Sec.  408.110  General definitions and use of terms.

    (a) Terms relating to the Act and regulations. (1) The Act means 
the Social Security Act as amended (42 U.S.C. Chap.7).
    (2) Title means the title of the Act.
    (3) Section or Sec.   means a section of the regulations in part 
408 of this chapter unless the context indicates otherwise.
    (b) Commissioner; Appeals Council; Administrative Law Judge 
defined. (1) Commissioner means the Commissioner of Social Security.
    (2) Appeals Council means the Appeals Council of the Office of 
Hearings and Appeals of the Social Security Administration or a member 
or members of the Council designated by the Chairman.
    (3) Administrative Law Judge means an Administrative Law Judge in 
the Office of Hearings and Appeals in the Social Security 
Administration.
    (c) Miscellaneous. (1) A calendar month. The period including all 
of 24 hours of each day of January, February, March, April, May, June, 
July, August, September, October, November, or December.
    (2) Federal benefit rate (FBR). The amount of the cash benefit 
payable under title XVI for the month to an eligible individual who has 
no income. The FBR does not include any State supplementary payment 
that is paid by the Commissioner pursuant to an agreement with a State 
under section 1616(a) of the Act or section 212(b) of Public Law 93-66.
    (3) Qualified individual. An individual who meets all the 
requirements for qualification for SVB in Sec.  408.202 and does not 
meet any of the conditions that prevent qualification in Sec.  408.204.

[[Page 16420]]

    (4) Special veterans benefits (SVB). The benefits payable to 
certain veterans of World War II under title VIII of the Act.
    (5) State. Unless otherwise indicated, this means:
    (i) A State of the United States
    (ii) The District of Columbia; or
    (iii) The Northern Mariana Islands.
    (6) Supplemental Security Income (SSI). SSI is the national program 
for providing a minimum level of income to aged, blind, and disabled 
individuals under title XVI of the Act.
    (7) United States. When used in the geographical sense, this is:
    (i) The 50 States;
    (ii) The District of Columbia; and
    (iii) The Northern Mariana Islands.
    (8) We, us or our means the Social Security Administration (SSA).
    (9) World War II. The period beginning September 16, 1940 and 
ending on July 24, 1947.
    (10) You or your means, as appropriate, the person who applies for 
benefits, the person for whom an application is filed, or the person 
who is considering applying for benefits.


Sec.  408.120  Periods of limitations ending on Federal nonworkdays.

    Title VIII of the Act and the regulations in this part require you 
to take certain actions within specified time periods or you may lose 
your right to a portion or all of your benefits. If any such period 
ends on a Saturday, Sunday, Federal legal holiday, or any other day all 
or part of which is declared to be a nonworkday for Federal employees 
by statute or Executive Order, you will have until the next Federal 
workday to take the prescribed action.

Subpart B--SVB Qualification and Entitlement

    Authority: Secs. 702(a)(5), 801, 802, 803, 804, 806, 810 and 
1129A of the Social Security Act (42 U.S.C. 902(a)(5), 1001, 1002, 
1003, 1004, 1006, 1010 and 1320a-8a); Sec. 251, Pub. L. 106-169, 113 
Stat. 1844.


Sec.  408.201  What is this subpart about?

    You are qualified for SVB if you meet the requirements listed in 
Sec.  408.202 and if none of the conditions listed in Sec.  408.204 
exist. However, you cannot be entitled to receive benefits for any 
month before the first month in which you reside outside the United 
States on the first day of the month and meet all the qualification 
requirements. You must give us any information we request and evidence 
to prove that you meet these requirements. You continue to be qualified 
for SVB unless we determine that you no longer meet the requirements 
for qualification in Sec.  408.202 or we determine that you are not 
qualified because one of the conditions listed in Sec.  404.204 of this 
chapter exists. You continue to be entitled to receive benefits unless 
we determine you are no longer residing outside the United States.


Sec.  408.202  How do you qualify for SVB?

    You qualify for SVB if you meet all of the following requirements.
    (a) Age. You were age 65 or older on December 14, 1999 (the date on 
which Pub. L. 106-169 was enacted into law).
    (b) World War II veteran. You are a World War II veteran as 
explained in Sec.  408.216.
    (c) SSI eligible. You were eligible for SSI, as explained in Sec.  
408.218, for both December 1999 (the month in which Pub. L. 106-169 was 
enacted into law) and for the month in which you file your application 
for SVB.
    (d) Application. You file an application for SVB as explained in 
subpart C of this part.
    (e) Other benefit income. You do not have other benefit income, as 
explained in Sec.  408.220, which is equal to, or more than, 75 percent 
of the current FBR.


Sec.  408.204  What conditions will prevent you from qualifying for SVB 
or being entitled to receive SVB payments?

    (a) General rule. Even if you meet all the qualification 
requirements in Sec.  408.202, you will not be qualified for SVB for or 
entitled to receive SVB payments for any of the following months.
    (1) Removal from the United States. Any month that begins after the 
month in which we are advised by the Attorney General that you have 
been removed (including deported) from the United States pursuant to 
section 237(a) or 212(a)(6)(A) of the Immigration and Nationality Act 
and before the month in which you are subsequently lawfully admitted to 
the United States for permanent residence.
    (2) Fleeing felon. Any month during any part of which you are 
fleeing to avoid prosecution, or custody or confinement after 
conviction, under the laws of the United States or the jurisdiction in 
the United States from which you fled, for a crime or an attempt to 
commit a crime that is a felony under the laws of the place from which 
you fled, or in the case of the State of New Jersey, is a high 
misdemeanor.
    (3) Parole violation. Any month during any part of which you 
violate a condition of probation or parole imposed under Federal or 
State law.
    (4) Residence in certain countries. Any month during which you are 
not a citizen or national of the United States and reside in a country 
to which payments to residents of that country are withheld by the 
Treasury Department under section 3329 of title 31, United States Code.
    (b) Condition occurs before we determine that you are qualified. If 
one of the conditions in paragraph (a) of this section occurs before we 
determine that you are qualified, we will deny your claim for SVB.
    (c) Condition occurs after we determine that you are qualified. If 
one of the conditions in paragraph (a) of this section occurs after we 
determine that you are qualified for SVB, you cannot receive SVB 
payments for any month in which the condition exists.


Sec.  408.206  What happens when you apply for SVB?

    (a) General rule. When you apply for SVB, we will ask you for 
documents and other information that we need to determine if you meet 
all the requirements for qualification. You must give us complete 
information (see subpart D of this part for our rules on evidence). If 
you do not meet all of the requirements for qualification listed in 
Sec.  408.202, or if one of the conditions listed in Sec.  408.204 
exists, we will deny your claim.
    (b) If you are a qualified individual residing in the United 
States. If you meet all the requirements for qualification listed in 
Sec.  408.202 and if none of the conditions listed in Sec. 408.204 
exist, we will send you a letter telling you the following:
    (1) You are qualified for SVB;
    (2) In order to become entitled to SVB, you will have to begin 
residing outside the United States by the end of the fourth calendar 
month after the month in which your notice of qualification is dated. 
For example, if our letter is dated May 15, you must establish 
residence outside the United States before October 1 of that year; and
    (3) What documents and information you must give us to establish 
that you are residing outside the United States.


Sec.  408.208  What happens if you establish residence outside the 
United States within 4 calendar months?

    If you begin residing outside the United States within 4 calendar 
months after the month in which your SVB qualification notice is dated, 
we will send you a letter telling you that you are entitled to SVB and 
the first month for which SVB payments can be made to you. The letter 
will also tell you the amount of your monthly benefit payments, whether 
your payments are reduced because of your other benefit

[[Page 16421]]

income, and what rights you have to a reconsideration of our 
determination.


Sec.  408.210  What happens if you do not establish residence outside 
the United States within 4 calendar months?

    If you do not establish residence outside the United States within 
4 calendar months after the month in which your SVB qualification 
notice is dated, we will deny your SVB claim. We will send you a notice 
explaining what rights you have to a reconsideration of our 
determination. You will have to file a new application and meet all the 
requirements for qualification and entitlement based on the new 
application to become entitled to SVB.


Sec.  408.212  What happens if you are a qualified individual already 
residing outside the United States?

    If you meet all the requirements for qualification listed in Sec.  
408.202 and if none of the conditions listed in Sec.  408.204 exist, we 
will ask you for documents and information to establish your residence 
outside the United States. If you establish that you are residing 
outside the United States, we will send you a letter telling you that 
you are entitled to SVB and the first month for which SVB payments can 
be made to you. The letter will also tell you the amount of your 
monthly benefit payments, whether your payments are reduced because of 
your other benefit income, and what rights you have to a 
reconsideration of our determination.

Age


Sec.  408.214  Are you age 65?

    You become age 65 on the first moment of the day before the 
anniversary of your birth corresponding to age 65. Thus, you must have 
been born on or before December 15, 1934 to be at least age 65 on 
December 14, 1999 and to qualify for SVB.

Military Service


Sec.  408.216  Are you a World War II veteran?

    (a) Service requirements. For SVB purposes, you are a World War II 
veteran if you:
    (1) Served in the active military, naval or air service of the 
United States during World War II at any time during the period 
beginning on September 16, 1940 and ending on July 24, 1947; or
    (2) Served in the organized military forces of the Government of 
the Commonwealth of the Philippines, while the forces were in the 
service of the U.S. Armed Forces pursuant to the military order of the 
President dated July 26, 1941, including among the military forces 
organized guerrilla forces under commanders appointed, designated, or 
subsequently recognized by the Commander in Chief, Southwest Pacific 
Area, or other competent authority in the U.S. Army. This service must 
have been rendered at any time during the period beginning July 26, 
1941 and ending on December 30, 1946.
    (b) Discharge requirements. You must have been discharged or 
released from this service under conditions other than dishonorable 
after service of 90 days or more or, if your service was less than 90 
days, because of a disability or injury incurred or aggravated in the 
line of active duty.

SSI Eligibility


Sec.  408.218  Do you meet the SSI eligibility requirements?

    For SVB purposes, you are eligible for SSI for a given month if all 
of the following are met:
    (a) You have been determined to be eligible for SSI (except as 
noted in paragraph (c) of this section); you do not have to actually 
receive a payment for that month;
    (b) Your SSI eligibility has not been terminated for that month; 
and
    (c) Your SSI benefits are not subject to a penalty under Sec.  
416.1340 of this chapter. This includes months in which a penalty has 
been imposed, as well as months in which a penalty cannot be imposed 
because you are in SSI nonpay status for some other reason.

Other Benefit Income


Sec.  408.220  Do you have other benefit income?

    (a) Description of other benefit income. Other benefit income is 
any regular periodic payment (such as an annuity, pension, retirement 
or disability benefit) that you receive. For other benefit income to 
affect your SVB eligibility, you must have been receiving the other 
benefit income in any part of the 12-month period before the month in 
which you filed your application for SVB. Payments received after you 
become entitled to SVB can be included as other benefit income only if 
you received a similar payment from the same or a related source during 
any part of the 12-month period before the month in which you filed 
your application for SVB.
    (b) When other benefit payments are considered to be similar 
payments from the same or a related source. Payments are similar 
payments from the same or a related source if they are received from 
sources substantially related to the sources of income received before 
you became entitled to SVB. For example, if you received U.S. Social 
Security spouse's benefits in the 12-month period before you filed your 
application for SVB and these were changed to widower's benefits after 
you became entitled to SVB, we would consider this to be from the same 
or a related source.
    (c) Examples of other benefit income. Other benefit income can come 
from a source inside or outside the United States. It includes, but is 
not limited to, any of the following:
    (1) Veterans' compensation or pension,
    (2) Workers' compensation,
    (3) U.S. or foreign Social Security benefits (not including SSI 
payments from the U.S.),
    (4) Railroad retirement annuity or pension,
    (5) Retirement or disability pension,
    (6) Individual Retirement Account (IRA) payments, and
    (7) Unemployment insurance benefit.
    (d) If you receive a lump-sum payment. Regular periodic payments 
can also include lump-sum payments made at your request or as an 
administrative convenience or practice in place of more frequent 
payments. See Sec.  408.224(e) for an explanation of how we determine 
the monthly amount of your benefit income if you receive a lump-sum 
payment.


Sec.  408.222  How does your other benefit income affect your SVB?

    (a) Income began before you qualify for SVB. If, at the time you 
file your application for SVB, your other benefit income is equal to, 
or more than, the maximum SVB payment possible (see Sec.  408.505), we 
will deny your SVB claim. If it is less, we will reduce any monthly SVB 
payments you become entitled to by the amount of your other benefit 
income (see Sec.  408.510 for a description of how we make the 
reduction).
    (b) Income begins after you qualify for SVB. If you have been 
determined to be qualified for SVB, we will reduce any monthly SVB 
payments you become entitled to by the amount of your other benefit 
income (see Sec.  408.510 for a description of how we make the 
reduction).


Sec.  408.224  How do we determine the monthly amount of your other 
benefit income?

    If your other benefit income is paid in other than monthly amounts, 
we will compute the equivalent monthly amount as follows:
    (a) Weekly payments. We multiply the amount of the weekly payment 
by 52 and divide by 12 to determine the equivalent monthly payment 
amount.
    (b) Bi-weekly payments. We multiply the amount of the bi-weekly 
payment by

[[Page 16422]]

26 and divide by 12 to determine the equivalent monthly payment amount.
    (c) Quarterly payments. We multiply the amount of the quarterly 
payment by 4 and divide by 12 to determine the equivalent monthly 
payment amount.
    (d) Semi-annual payments. We multiply the amount of the semi-annual 
payment by 2 and divide by 12 to determine the equivalent monthly 
payment amount.
    (e) Lump sum payment. If the paying agency will not prorate the 
lump sum to determine the monthly amount, we will compute the amount as 
follows:
    (1) If the payment is for a specific period. We divide the lump sum 
by the number of months in the period for which the payment was made to 
determine the equivalent monthly payment amount.
    (2) If the payment is for a lifetime or for an unspecified period. 
We divide the lump sum amount by your life expectancy in months at the 
time the lump sum is paid.


Sec.  408.226  What happens if you begin receiving other benefit income 
after you become entitled to SVB?

    If you begin receiving other benefit income after you become 
entitled to SVB, we will reduce your SVB by the amount of those 
payments only if you were receiving similar benefits from the same or a 
related source during the 12-month period before you filed for SVB. 
(See Sec.  408.220(b) for a description of when we consider other 
benefit income to be from the same or a related source.)

Residence Outside the United States


Sec.  408.228  When do we consider you to be residing outside the 
United States?

    (a) Effect of residency on SVB eligibility. You can be paid SVB 
only for those months in which you are residing outside the United 
States but you can not be paid for a month that is earlier than the 
month in which you filed your application for SVB. You are residing 
outside the United States in a month only if you reside outside the 
United States on the first day of that month. For SVB purposes, you can 
be a resident of only one country at a time. You cannot, for example, 
maintain a residence in the United States and a residence outside the 
United States at the same time.
    (b) Definition of residing outside the United States. We consider 
you to be residing outside the United States if you:
    (1) Have established an actual dwelling place outside the United 
States; and
    (2) Intend to continue to live outside the United States.
    (c) When we will assume you intend to continue living outside the 
United States. If you tell us, or the evidence shows, that you intend 
to reside outside the United States for at least 6 months, we will 
assume you meet the intent requirement in paragraph (b)(2) of this 
section. Otherwise we will assume, absent convincing evidence to the 
contrary, that your stay is temporary and that you are not residing 
outside the United States.


Sec.  408.230  When must you begin residing outside the United States?

    (a) 4-month rule. Except as provided in paragraph (b) of this 
section, you must begin residing outside the United States by the end 
of the fourth calendar month after the month in which the notice 
explaining that you are qualified for SVB is dated, as explained in 
Sec.  408.206. If you do not establish residence outside the United 
States within this 4-month period, we will deny your claim for SVB. You 
will have to file a new application and meet all the requirements for 
qualification and entitlement based on the new application to become 
entitled to SVB.
    (b) When we will extend the 4-month period. We will extend the 4-
month period for establishing residence outside the United States if 
you are in the United States and are appealing either:
    (1) A determination that we made on your SVB claim, or
    (2) A determination that we made on a title II and/or a title XVI 
claim but only if the determination affects your SVB qualification.
    (c) How we extend the 4-month period. If the requirements in 
paragraph (b) of this section are met, the 4-month period begins with 
the month after the month in which your notice of our decision on your 
appeal is dated or the month in which your appeal rights have expired.


Sec.  408.232  When do you lose your foreign resident status?

    (a) General rule. We consider you to have lost or abandoned your 
residence outside the United States if you:
    (1) Enter the United States and stay for more than 1 full calendar 
month (see Sec.  408.234 for exceptions to this rule);
    (2) Tell us that you no longer consider yourself to be residing 
outside the United States; or
    (3) Become eligible (as defined by title XVI) for SSI benefits.
    (b) Resumption of SVB following a period of U.S. residence. Once 
you lose or abandon your residence outside the United States, you 
cannot receive SVB again until you meet all the requirements for SVB 
qualification and reestablish your residence outside the United States.

    Example: You leave your home outside the United States on June 
15 to visit your son in the United States and return to your home 
abroad on August 15. Your SVB payments will continue for the months 
of June and July. However, because you were in the United States for 
the entire calendar month of July (i.e., all of the first day 
through all of the last day of July), you are not entitled to an SVB 
payment for the month of August. Your SVB payments resume with 
September, the month you reestablished your residence outside the 
United States.


Sec.  408.234  Can you continue to receive SVB payments if you stay in 
the United States for more than 1 full calendar month?

    (a) When we will consider your foreign residence to continue. We 
will continue to consider you to be a foreign resident and will 
continue to pay you SVB payments even if you have been in the United 
States for more than 1 full calendar month if you--
    (1) Made a good faith effort to return to your home abroad within 
that 1-month period but were prevented from doing so by circumstances 
beyond your control (e.g., sickness, a death in the family, a 
transportation strike, etc.); or
    (2) Are exercising your option to be personally present in the 
United States to present testimony and other evidence in the appeal of 
an SSA decision on a claim filed under any SSA-administered program. 
This extension applies only as long as you are participating in 
activities where you are providing testimony and other evidence in 
connection with a determination or decision at a specific level of the 
appeals process (e.g., a hearing before an administrative law judge).
    (b) When you must return to your home abroad. When the 
circumstance/event that was the basis for the continuation of your SVB 
payments ceases to exist, you must return to your home abroad within 1 
full calendar month. If you do not return to your home abroad within 
this 1-calendar-month period, we will consider you to have lost or 
abandoned your foreign resident status for SVB purposes and we will 
stop your SVB payments with the first day of the month following the 
first full calendar month you remain in the United States.

Subpart C--Filing Applications

    Authority: Secs. 702(a)(5), 802, 806, and 810 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1102, 1106 and 1110); Sec. 251, 
Pub. L. 106-169, 113 Stat. 1844.

[[Page 16423]]

Filing Your Application


Sec.  408.301  What is this subpart about?

    This subpart contains our rules about filing applications for SVB. 
It explains what an application is, who may sign it, where and when it 
must be signed and filed, the period of time it is in effect, and how 
it may be withdrawn. This subpart also explains when a written 
statement or an oral inquiry may be considered to establish your 
application filing date.


Sec.  408.305  Why do you need to file an application to receive 
benefits?

    In addition to meeting other requirements, you must file an 
application to become entitled to SVB. If you believe you may be 
entitled to SVB, you should file an application. Filing an application 
will--
    (a) Permit us to make a formal decision on whether you qualify for 
SVB;
    (b) Assure that you receive SVB for any months you are entitled to 
receive payments; and
    (c) Give you the right to appeal if you are dissatisfied with our 
determination.


Sec.  408.310  What makes an application a claim for SVB?

    To be considered a claim for SVB, an application must generally 
meet all of the following conditions:
    (a) It must be on the prescribed SVB application form (SSA-2000-F6, 
Application for Special Benefits for World War II Veterans).
    (b) It must be completed and filed with SSA as described in Sec.  
408.325.
    (c) It must be signed by you or by someone who may sign an 
application for you as described in Sec.  408.315.
    (d) You must be alive at the time it is filed.


Sec.  408.315  Who may sign your application?

    (a) When you must sign. If you are mentally competent, and 
physically able to do so, you must sign your own application.
    (b) When someone else may sign for you. (1) If you are mentally 
incompetent, or physically unable to sign, your application may be 
signed by a court-appointed representative or a person who is 
responsible for your care, including a relative. If you are in the care 
of an institution, the manager or principal officer of the institution 
may sign your application.
    (2) If it is necessary to protect you from losing benefits and 
there is good cause why you could not sign the application, we may 
accept an application signed by someone other than you or a person 
described in paragraph (b)(1) of this section.

    Example: Mr. Smith comes to a Social Security office a few days 
before the end of a month to file an application for SVB for his 
neighbor, Mr. Jones. Mr. Jones, a 68-year-old widower, just suffered 
a heart attack and is in the hospital. He asked Mr. Smith to file 
the application for him. We will accept an application signed by Mr. 
Smith because it would not be possible to have Mr. Jones sign and 
file the application until the next calendar month and a loss of one 
month's benefits would result.


Sec.  408.320  What evidence shows that a person has authority to sign 
an application for you?

    (a) A person who signs an application for you will be required to 
give us evidence of his or her authority to sign the application for 
you under the following rules:
    (1) If the person who signs is a court-appointed representative, he 
or she must give us a certificate issued by the court showing authority 
to act for you.
    (2) If the person who signs is not a court-appointed 
representative, he or she must give us a statement describing his or 
her relationship to you. The statement must also describe the extent to 
which the person is responsible for your care.
    (3) If the person who signs is the manager or principal officer of 
an institution which is responsible for your care, he or she must give 
us a statement indicating the person's position of responsibility at 
the institution.
    (b) We may, at any time, require additional evidence to establish 
the authority of a person to sign an application for you.


Sec.  408.325  When is your application considered filed?

    (a) General rule. We consider an application for SVB filed on the 
day it is received by an SSA employee at one of our offices, by an SSA 
employee who is authorized to receive it at a place other than one of 
our offices, or by any office of the U.S. Foreign Service or by the 
Veterans Affairs Regional Office in the Philippines.
    (b) Exceptions. (1) When we receive an application that is mailed, 
we will use the date shown by the United States postmark as the filing 
date if using the date we receive it would result in your entitlement 
to additional benefits. If the postmark is unreadable, or there is no 
United States postmark, we will use the date the application is signed 
(if dated) or 5 days before the day we receive the signed application, 
whichever date is later.
    (2) We consider an application to be filed on the date of the 
filing of a written statement or the making of an oral inquiry under 
the conditions in Sec. Sec.  408.340 and 408.345.
    (3) We will establish a deemed filing date of an application in a 
case of misinformation under the conditions described in Sec.  408.351. 
The filing date of the application will be a date determined under 
Sec.  408.351(b).


Sec.  408.330  How long will your application remain in effect?

    Your application for SVB will remain in effect from the date it is 
filed until we make a final determination on it, unless there is a 
hearing decision on your application. If there is a hearing decision, 
your application will remain in effect until the hearing decision is 
issued.

Filing Date Based on Written Statement or Oral Inquiry


Sec.  408.340  When will we use a written statement as your filing 
date?

    If you file with us under the rules stated in Sec.  408.325 a 
written statement, such as a letter, indicating your intent to claim 
SVB, we will use the filing date of the written statement as the filing 
date of your application. If the written statement is mailed, we will 
use the date the statement was mailed to us as shown by the United 
States postmark. If the postmark is unreadable or there is no United 
States postmark, we will use the date the statement is signed (if 
dated) or 5 days before the day we receive the written statement, 
whichever date is later, as the filing date. In order for us to use 
your written statement to protect your filing date, the following 
requirements must be met:
    (a) The statement indicates your intent to file for benefits.
    (b) The statement is signed by you, your spouse, or a person 
described in Sec.  408.315.
    (c) You file an application with us on an application form as 
described in Sec.  408.310(a), or one is filed for you by a person 
described in Sec.  408.315, within 60 days after the date of a notice 
we will send advising of the need to file an application. The notice 
will say that we will make an initial determination of your 
qualification if an application form is filed within 60 days after the 
date of the notice. We will send the notice to you. However, if it is 
clear from the information we receive that you are mentally 
incompetent, we will send the notice to the person who submitted the 
written statement.
    (d) You are alive when the application is filed.


Sec.  408.345  When will we use the date of an oral inquiry as your 
application filing date?

    We will use the date of an oral inquiry about SVB as the filing 
date of your

[[Page 16424]]

application for SVB if the following requirements are met:
    (a) The inquiry asks about your entitlement to SVB.
    (b) The inquiry is made by you, your spouse, or a person who may 
sign an application on your behalf as described in Sec.  408.315.
    (c) The inquiry, whether in person or by telephone, is directed to 
an office or an official described in Sec.  408.325(a).
    (d) You, or a person on your behalf as described in Sec.  408.315, 
file an application on a prescribed form within 60 days after the date 
of the notice we will send telling of the need to file an application. 
The notice will say that we will make an initial determination on 
whether you qualify for SVB if an application form is filed within 60 
days after the date of the notice. However, if it is clear from the 
information we receive that you are mentally incompetent, we will send 
the notice to the person who made the inquiry.
    (e) You are alive when the prescribed application is filed.

Deemed Filing Date Based on Misinformation


Sec.  408.351  What happens if we give you misinformation about filing 
an application?

    (a) General rule. You may have considered applying for SVB, for 
yourself or another person and you may have contacted us in writing, by 
telephone or in person to inquire about filing an application for SVB. 
It is possible that in responding to your inquiry, we may have given 
you misinformation about qualification for such benefits that caused 
you not to file an application at that time. If this happened and use 
of that date will result in entitlement to additional benefits, and you 
later file an application for SVB with us, we may establish an earlier 
filing date as explained in paragraphs (b) through (f) of this section.
    (b) Deemed filing date of an application based on misinformation. 
Subject to the requirements and conditions in paragraphs (c) through 
(f) of this section, we may establish a deemed filing date of an 
application for SVB under the following provisions.
    (1) If we determine that you failed to apply for SVB because we 
gave you misinformation about qualification for or entitlement to such 
benefits, we will deem an application for such benefits to have been 
filed with us on the later of--
    (i) The date on which we gave you the misinformation; or
    (ii) The date on which all of the requirements for qualification to 
SVB were met, other than the requirement of filing an application.
    (2) Before we may establish a deemed filing date of an application 
for SVB under paragraph (b)(1) of this section, you or a person 
described in Sec.  408.315 must file an application for such benefits.
    (c) Requirements concerning the misinformation. We apply the 
following requirements for purposes of paragraph (b) of this section.
    (1) The misinformation must have been provided to you by one of our 
employees while he or she was acting in his or her official capacity as 
our employee. For purposes of this section, an employee includes an 
officer of SSA, an employee of a U.S. Foreign Service office, and an 
employee of the SSA Division of the Veterans Affairs Regional Office in 
the Philippines who is authorized to take and develop Social Security 
claims.
    (2) Misinformation is information which we consider to be 
incorrect, misleading, or incomplete in view of the facts which you 
gave to the employee, or of which the employee was aware or should have 
been aware, regarding your particular circumstances. In addition, for 
us to find that the information you were given was incomplete, the 
employee must have failed to provide you with the appropriate, 
additional information which he or she would be required to provide in 
carrying out his or her official duties.
    (3) The misinformation may have been provided to you orally or in 
writing.
    (4) The misinformation must have been provided to you in response 
to a specific request by you to us for information about your 
qualification for SVB.
    (d) Evidence that misinformation was provided. We will consider the 
following evidence in making a determination under paragraph (b) of 
this section.
    (1) Preferred evidence. Preferred evidence is written evidence 
which relates directly to your inquiry about your qualification for SVB 
and which shows that we gave you misinformation which caused you not to 
file an application. Preferred evidence includes, but is not limited 
to, the following--
    (i) A notice, letter or other document which was issued by us and 
addressed to you; or
    (ii) Our record of your telephone call, letter or in-person 
contact.
    (2) Other evidence. In the absence of preferred evidence, we will 
consider other evidence, including your statements about the alleged 
misinformation, to determine whether we gave you misinformation, which 
caused you not to file an application. We will not find that we gave 
you misinformation, however, based solely on your statements. Other 
evidence which you provide or which we obtain must support your 
statements. Evidence which we will consider includes, but is not 
limited to, the following--
    (i) Your statements about the alleged misinformation, including 
statements about--
    (A) The date and time of the alleged contact(s);
    (B) How the contact was made, e.g., by telephone or in person;
    (C) The reason(s) the contact was made;
    (D) Who gave the misinformation; and
    (E) The questions you asked and the facts you gave us, and the 
questions we asked and the information we gave you, at the time of the 
contact;
    (ii) Statements from others who were present when you were given 
the alleged misinformation, e.g., a neighbor who accompanied you to our 
office;
    (iii) If you can identify the employee or the employee can recall 
your inquiry about benefits--
    (A) Statements from the employee concerning the alleged contact, 
including statements about the questions you asked, the facts you gave, 
the questions the employee asked, and the information provided to you 
at the time of the alleged contact; and
    (B) Our assessment of the likelihood that the employee provided the 
alleged misinformation;
    (iv) An evaluation of the credibility and the validity of your 
allegations in conjunction with other relevant information; and
    (v) Any other information regarding your alleged contact.
    (e) Information which does not constitute satisfactory proof that 
misinformation was given. Certain kinds of information will not be 
considered satisfactory proof that we gave you misinformation which 
caused you not to file an application. Examples of such information 
include--
    (1) General informational pamphlets that we issue to provide basic 
program information;
    (2) General information which we review or prepare but which is 
disseminated by the media, e.g., radio, television, magazines, and 
newspapers; and
    (3) Information provided by other governmental agencies, e.g., the 
Department of Veterans Affairs (except for certain employees of the SSA 
Division of the Veterans Affairs Regional Office in the Philippines as 
provided in paragraph (c)(1) of this section), the Department of 
Defense,

[[Page 16425]]

State unemployment agencies, and State and local governments.
    (f) Claim for benefits based on misinformation. You may make a 
claim for SVB based on misinformation at any time. Your claim must 
contain information that will enable us to determine if we did provide 
misinformation to you about qualification for SVB which caused you not 
to file an application. Specifically, your claim must be in writing and 
it must explain what information was provided, how, when and where it 
was provided and by whom, and why the information caused you not to 
file an application. If you give us this information, we will make a 
determination on such a claim for benefits if all of the following 
conditions are also met.
    (1) An application for SVB is filed with us by you or someone 
described in Sec.  408.315 who may file. The application must be filed 
after the alleged misinformation was provided. This application may 
be--
    (i) An application on which we have made a previous final 
determination or decision awarding SVB, but only if the claimant 
continues to be entitled to benefits based on that application;
    (ii) An application on which we have made a previous final 
determination or decision denying the benefits, but only if such 
determination or decision is reopened; or
    (iii) A new application on which we have not made a final 
determination or decision.
    (2) The establishment of a deemed filing date of an application for 
benefits based on misinformation could result in entitlement to 
benefits or payment of additional benefits.
    (3) We have not made a previous final determination or decision to 
which you were a party on a claim for benefits based on alleged 
misinformation involving the same facts and issues. This provision does 
not apply, however, if the final determination or decision may be 
reopened.

Withdrawal of Application


Sec.  408.355  Can you withdraw your application?

    (a) Request for withdrawal filed before a determination is made. 
You may withdraw your application for SVB before we make a 
determination on it if--
    (1) You, or a person who may sign an application for you under 
Sec.  408.315, file a written request for withdrawal at a place 
described in Sec.  408.325; and
    (2) You are alive at the time the request is filed.
    (b) Request for withdrawal filed after a determination is made. An 
application may be withdrawn after we make a determination on it if you 
repay all benefits already paid based on the application being 
withdrawn or we are satisfied that the benefits will be repaid.
    (c) Effect of withdrawal. If we approve your request to withdraw 
your application, we consider that the application was never filed. If 
we disapprove your request for withdrawal, we treat your application as 
though you did not file a request for withdrawal.


Sec.  408.360  Can you cancel your request to withdraw your 
application?

    You may request to cancel your request to withdraw your application 
and have your application reinstated if all of the following 
requirements are met:
    (a) You, or someone who may sign an application for you under Sec.  
408.315, file a written request for cancellation at a place described 
in Sec.  408.325;
    (b) You are alive at the time you file your request for 
cancellation; and
    (c) A cancellation request received after we have approved your 
withdrawal must be filed no later than 60 days after the date of the 
notice of approval.

Subpart D--Evidence Requirements

    Authority: Secs. 702(a)(5), 806, and 810 of the Social Security 
Act (42 U.S.C. 902(a)(5), 1006, and 1010); sec. 251, Pub. L. 106-
169, 113 Stat. 1844.

General Information


Sec.  408.401  What is this subpart about?

    We cannot determine your entitlement to SVB based solely on your 
statements about your qualification for benefits or other facts 
concerning payments to you. We will ask you for specific evidence or 
additional information. We may verify the evidence you give us with 
other sources to ensure that it is correct. This subpart contains our 
rules about the evidence you need to give us when you claim SVB.


Sec.  408.402  When do you need to give us evidence?

    When you apply for SVB, we will ask you for any evidence we need to 
make sure that you meet the SVB qualification and entitlement 
requirements. After you begin receiving SVB, we may ask you for 
evidence showing whether your SVB payments should be reduced or 
stopped. We will help you get any documents you need but do not have. 
If your evidence is a foreign-language record or document, we can have 
it translated for you. The evidence you give us will be kept 
confidential and not disclosed to anyone but you except under the rules 
set out in part 401 of this chapter. You should also be aware that 
section 811 of the Act provides criminal penalties for misrepresenting 
the facts or for making false statements to obtain SVB payments for 
yourself or someone else, or to continue entitlement to benefits.


Sec.  408.403  Where should you give us your evidence?

    You should give your evidence to the people at a Social Security 
Administration office. In the Philippines, you should give your 
evidence to the people at the Veterans Affairs Regional Office. 
Elsewhere outside the United States, you should give your evidence to 
the people at the nearest U.S. Social Security office or a United 
States Foreign Service Office.


Sec.  408.404  What happens if you fail to give us the evidence we ask 
for?

    (a) You have not yet qualified for SVB. Generally, we will ask you 
to give us specific evidence or information by a certain date to prove 
that you qualify for SVB or to prove your foreign residence. If we do 
not receive the evidence or information by that date, we may decide 
that you do not qualify for SVB or may not receive SVB and deny your 
claim.
    (b) You have qualified for or become entitled to SVB. If you have 
already qualified for or become entitled to SVB, we may ask you to give 
us information by a specific date to decide whether you should receive 
benefits or, if you are already receiving benefits, whether your 
benefits should be stopped or reduced. If you do not give us the 
requested evidence or information by the date given, we may decide that 
you are no longer entitled to benefits or that your benefits should be 
stopped or reduced.
    (c) If you need more time. You should let us know if you are unable 
to give us the evidence or information within the specified time and 
explain why there will be a delay. If this delay is due to illness, 
failure to receive timely evidence you have asked for from another 
source, or a similar circumstance, we will give you additional time to 
give us the evidence.


Sec.  408.405  When do we require original records or copies as 
evidence?

    (a) General rule. To prove your qualification for or continuing 
entitlement to SVB, you may be asked to show us an original document or 
record. These original documents or records will be returned to you 
after we have photocopied them. We will also accept copies of original 
records that are properly certified and some uncertified birth 
certifications. These types of

[[Page 16426]]

records are described in paragraphs (b) and (c) of this section.
    (b) Certified copies of original records. You may give us copies of 
original records or extracts from records if they are certified as true 
and exact copies by:
    (1) The official custodian of the record;
    (2) A Social Security Administration employee authorized to certify 
copies;
    (3) A Veterans Affairs employee if the evidence was given to that 
agency to obtain veteran's benefits;
    (4) An employee of the Veterans Affairs Regional Office, Manila, 
Philippines who is authorized to certify copies; or
    (5) A U.S. Consular Officer or employee of the Department of State 
authorized to certify evidence received outside the United States.
    (c) Uncertified copies of original birth records. You may give us 
an uncertified photocopy of a birth registration notification as 
evidence of age where it is the practice of the local birth registrar 
to issue them in this way.


Sec.  408.406  How do we evaluate the evidence you give us?

    When you give us evidence, we examine it to see if it is convincing 
evidence. This means that unless we have information in our records 
that raises a doubt about the evidence, other evidence of the same fact 
will not be needed. If the evidence you give us is not convincing by 
itself, we may ask you for additional evidence. In evaluating whether 
the evidence you give us is convincing, we consider such things as 
whether:
    (a) The information contained in the evidence was given by a person 
in a position to know the facts;
    (b) There was any reason to give false information when the 
evidence was created;
    (c) The information in the evidence was given under oath, or with 
witnesses present, or with the knowledge that there was a penalty for 
giving false information;
    (d) The evidence was created at the time the event took place or 
shortly thereafter;
    (e) The evidence has been altered or has any erasures on it; and
    (f) The information contained in the evidence agrees with other 
available evidence including our records.

Age


Sec.  408.410  When do you need to give us evidence of your age?

    To qualify for SVB you must establish that you were age 65 or older 
on December 14, 1999, the date on which Public Law 106-169 was enacted 
into law. If we have already established your age or date of birth in 
connection with your claim for other benefit programs that we 
administer, you will not have to give us evidence of your age for your 
SVB claim. If we have not established your age or date of birth, you 
must give us evidence of your age or date of birth. In the absence of 
information to the contrary, we generally will not ask for additional 
evidence of your age or date of birth if you state that you are at 
least age 68, and you submit documentary evidence that is at least 3 
years old when the application is filed and supports your statement.


Sec.  408.412  What kinds of evidence of age do you need to give us?

    For a description of the kinds of evidence of age you may need to 
give us, see Sec.  416.802 of this chapter.


Sec.  408.413  How do we evaluate the evidence of age you give us?

    In evaluating the evidence of age you give us, we use the rules in 
Sec.  416.803 of this chapter.

Military Service


Sec.  408.420  What evidence of World War II military service do you 
need to give us?

    (a) Kinds of evidence you can give us. To show that you are a World 
War II veteran as defined in Sec.  408.216, you can give us any of the 
documents listed in Sec.  404.1370(b)(1) through (5) of this chapter 
that were issued by a U.S. Government agency. However, depending on the 
type of document you give us and what the document shows, we may verify 
your military service, or the dates of your service, with the National 
Personnel Records Center (NPRC) in St. Louis, Missouri. If we do, we 
will use the information in NPRC's records to determine whether you 
meet the military service requirements for SVB.
    (b) What the evidence must show. When you file an application for 
SVB, you must give us evidence of your World War II military service. 
The evidence you give us must show:
    (1) Your name;
    (2) The branch of service in which you served;
    (3) The dates of your military service;
    (4) Your military service serial number;
    (5) The character of your discharge; and
    (6) If your service was in the organized military forces of the 
Government of the Commonwealth of the Philippines (including the 
organized guerrilla forces), the period of your service that was under 
the control of U.S. Armed Forces.

SSI Eligibility


Sec.  408.425  How do we establish your eligibility for SSI?

    To qualify for SVB, you must have been eligible for SSI for the 
month of December 1999, the month in which Public Law 106-169 was 
enacted, and for the month in which you filed your application for SVB. 
You do not have to submit evidence of this. We will use our SSI record 
of your eligibility to determine if you meet these requirements.

Other Benefit Income


Sec.  408.430  When do you need to give us evidence of your other 
benefit income?

    If you tell us or if we have information indicating that you are 
receiving other benefit income that could affect your qualification for 
or the amount of your SVB payments, we will ask you to give us evidence 
of that income as explained in Sec.  408.432.


Sec.  408.432  What kind of evidence of your other benefit income do 
you need to give us?

    As evidence of your other benefit income, we may require a document 
such as an award notice or other letter from the paying agency or 
written notification from the former employer, insurance company, etc. 
The evidence should show the benefit payable, the current amount of the 
payment, and the date the payment began.

Residence


Sec.  408.435  How do you prove that you are residing outside the 
United States?

    (a) General rule. To establish that you are residing outside the 
United States for SVB purposes, you must give us all of the following:
    (1) Evidence of the date on which you arrived in the country in 
which you are residing;
    (2) A statement signed by you showing the address at which you are 
living and that you intend to continue living there; and
    (3) Evidence that you are actually living at the address given in 
your signed statement.
    (b) Evidence of the date you entered the foreign country. To 
establish the date you arrived in the country in which you are 
residing, you can give us evidence such as:
    (1) A visa or passport showing the date you entered that country;
    (2) Your plane ticket showing the date you arrived in that country; 
or
    (3) An entry permit showing the date you entered that country.
    (c) Evidence of your actual place of residence. To establish your 
actual place

[[Page 16427]]

of residence, you can give us evidence such as:
    (1) A lease agreement showing where you live;
    (2) Rental or mortgage receipts;
    (3) Utility or other bills addressed to you at the address where 
you live;
    (4) A signed statement from a local official showing that he or she 
knows where you live, when you began living there and how he or she 
knows this information; or
    (5) A Standard Form 1199A, Direct Deposit Sign-Up Form, showing 
your address abroad and signed by an official of the financial 
institution after the date you arrived in the country in which you will 
be residing.


Sec.  408.437  How do you prove that you had good cause for staying in 
the United States for more than 1 full calendar month?

    (a) General rule. If you believe that you meet the requirements in 
Sec.  408.234 and that you should continue to receive SVB payments even 
though you have been in the United States for more than 1 full calendar 
month, you must give us evidence that you had good cause for staying in 
the United States.
    (b) Circumstances prevent you from returning to your home abroad. 
To prove that you had good cause for staying in the United States for 
more than 1 full calendar month, you must give us evidence of your good 
faith effort to return to your home abroad before the 1-month period 
had elapsed and of the circumstances/event which prevented your return 
to your home abroad.
    (1) Evidence of your good faith effort to return to your home 
abroad. Evidence of your plans to return to your home abroad can 
include, but is not limited to:
    (i) A plane ticket showing that you intended to return to your home 
abroad before the expiration of 1 full calendar month; or
    (ii) Notice from a travel agency or airline confirming the 
cancellation of your reservation to return to your home abroad on a 
date within 1 full calendar month.
    (2) Evidence of the circumstances preventing your return to your 
home abroad. The evidence we will accept from you to support the 
circumstance or event that prevented you from returning to your home 
abroad will depend on the reason you are staying in the United States. 
It can include, but is not limited to, a:
    (i) Newspaper article or other publication describing the event or 
natural disaster which prevented your return; or
    (ii) Doctor's statement, etc. showing that you are unable to 
travel; or
    (iii) Death certificate or notice if you are staying in the United 
States to attend the funeral of a member of your family.
    (c) You are appealing a decision we made. To establish that you had 
good cause to stay in the United States for more than 1 full calendar 
month because you want to appear in person at the appeal of a decision 
on a claim filed under a program administered by the Social Security 
Administration, you must submit evidence of this. The evidence must 
identify the appeal proceeding and the dates you are scheduled to 
attend.
    (d) When we may ask for more evidence. If you stay in the United 
States for several months, we may ask you to give us more evidence to 
prove that you are still unable to return to your home abroad.

Subpart E--Amount and Payment of Benefits

    Authority: Secs. 702(a)(5), 801, 805, and 810 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1001, 1005, and 1010); Sec. 251, 
Pub. L. 106-169, 113 Stat. 1844.


Sec.  408.501  What is this subpart about?

    This subpart explains how we compute the amount of your monthly SVB 
payment, including how we reduce your payments if you receive other 
benefit income. It also explains how we pay benefits under the SVB 
program.


Sec.  408.505  How do we determine the amount of your SVB payment?

    (a) Maximum SVB payment. The maximum monthly SVB payment is equal 
to 75% of the FBR for an individual under title XVI of the Act. See 
Sec.  416.410 of this chapter.
    (b) Cost-of-living adjustments in the FBR. The maximum SVB amount 
will increase whenever there is a cost-of-living increase in the SSI 
FBR under the provisions of Sec.  416.405 of this chapter. The basic 
SVB amount following such an increase is equal to 75 percent of the 
increased FBR.
    (c) When we will reduce the amount of your basic benefit. We will 
reduce your basic benefit by the amount of the other benefit income you 
receive in that month, as explained in Sec.  408.510.


Sec.  408.510  How do we reduce your SVB when you receive other benefit 
income?

    (a) Amount of the reduction. If you receive other benefit income as 
defined in Sec.  408.220, we will reduce your SVB payment by the amount 
of the other benefit income you receive in that month. The reduction is 
on a dollar-for-dollar and cents-for-cents basis. We do not round SVB 
payment amounts except as described in paragraph (b) of this section.
    (b) Minimum benefit amount. If the reduction described in paragraph 
(a) of this section results in a benefit amount that is greater than 
zero but less than $1.00, we will pay you a benefit of $1.00 for that 
month.


Sec.  408.515  When do we make SVB payments?

    SVB payments are made on the first day of each month and represent 
payment for that month. If the first day of the month falls on a 
Saturday, Sunday, or Federal legal holiday, payment will be made on the 
first day preceding such day that is not a Saturday, Sunday, or Federal 
legal holiday.

[FR Doc. 03-8168 Filed 4-3-03; 8:45 am]
BILLING CODE 4191-02-P




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