§ 404.1313 Effect of notice of determination that a "Federal benefit" is payable.

(a) Notice received prior to certification of payment. If the Secretary is notified by a department, agency, or wholly owned instrumentality of the United States that a "Federal benefit," as defined in § 404.1311, has been determined by it to be payable (even though later terminated) to anyone and such benefit is determined by the Secretary to be based on the service of the veteran during the World War II or post-World War II period, any benefits or the lumpsum death payment payable under Title II of the Act based upon wages and selfemployment income of such veteran shall be determined without regard to the provisions in §§ 404.1308 and 404.1309 for the crediting of World War II or post-World War II service wage credits.

(b) Notice received after certification of payment. If, prior to the receipt of such notification, the Secretary has made a determination and, pursuant to such determination, has certified a benefit for payment to the veteran, his dependents or survivors, or has certified for payment a lump-sum death payment in accordance with the provisions of § 404.1312, the Secretary, upon receipt of such notification, shall certify no further benefits for payment or shall recompute the amount of any further benefits as may otherwise be payable under Title II of the Act without consideration of §§ 404.1308 or 404.1309, as the case may be, and shall also determine the existence and amount of any erroneous payment. S 404.1314 Erroneous payment resulting from a determination that "Federal benefit" has been determined payable.

a

Upon receipt by the Secretary of notice that a "Federal benefit" has been determined to be payable by a department. agency, or wholly owned instrumentality of the United States, any payment certified to an individual in accordance with the provisions of § 404.1312 shall constitute an erroneous payment to the extent that such payment was based upon the inclusion of World War II or post-World War II service wage credits, except that benefits certified for payment prior to the first month in which the individual became eligible to another "Federal benefit" are not erroneous nor subject to adjustment or recovery. Pay

ments which are erroneous under this section are subject to the provisions of Subpart F of this Part 404.

§ 404.1315 Effect of section 217(b) of the Act; deemed insured status and deemed wages provided.

Section 217(b) of the Act gives survivors of a World War II veteran (see § 404.1304 for definition of "World War II veteran") the same benefit rights to which they would be entitled had such veteran died fully insured but only where such veteran was discharged or released from active military or naval service before July 27, 1951, and died within 3 years of such discharge or release and before July 27, 1954. (See § 404.1316 for conditions barring application of this provision.) Any such veteran is deemed: (a) To have died fully insured; and (b) For the purposes of computing benefits, to have an average monthly wage of not less than $160; and

(c) For the purpose of crediting "increment years," to have been paid wages of not less than $200 in each calendar year in which he had 30 days or more of active military or naval service after September 15, 1940, and prior to January 1, 1951.

§ 404.1316 Conditions barring application of deemed insured status.

Monthly benefits or a lump-sum death payment are not payable on the basis of the provisions of § 404.1315 if any of the following conditions exist:

(a) A larger monthly benefit or lumpsum death payment would be payable without the application of the provisions of such section; or

(b) The Veterans' Administration has determined that pension or compensation is payable by it on the basis of the veteran's death; or

(c) The veteran died while in the active service (including service deemed or considered to be active service) of the armed forces of the United States (for individuals included within the definition of "World War II veteran" see § 404.1304), whether such death occurred during his period of active service as a member of a regular or reserve component of such armed forces; or

(d) The veteran was first separated from such active service after July 26, 1951; or

(e) The veteran died after July 26 1954; or

(f) The veteran's only service during the World War II period was pursuant to an enlistment in the Philippine Scouts authorized by Public Law 190, 79th Congress (59 Stat. 538).

§ 404.1317

Computation of benefits

based on deemed insured status.

(a) General. The amount of the monthly benefit or the lump-sum death payment payable with respect to the death of a veteran to whom § 404.1315 applies is based on the primary insurance amount of such veteran as determined under section 215 (c) of the Act. (b) Crediting increment years where veteran insured without application of deemed insured status provision. If a veteran to whom the provisions of § 404.1315 apply was fully or currently insured on his record of wages (without regard to the war-service wage credits provided in § 404.1315(b)) and self-employment income, and entitlement to monthly benefits or a lump-sum death payment could be established without applying the deemed insured status provisions, the "increment years" as provided in § 404.1315(c) will be added to the increment years based on the veteran's wages. However, only one increment year is granted for any calendar year.

§ 404.1318 Benefits payable under deemed insured status upon death of World War II veteran.

The amount of any monthly benefit or lump-sum death payment payable under Subpart D of this Part 404 as a result of the death of a World War II veteran (as defined in § 404.1304) shall be not less than the amount determined as indicated in § 404.1317, provided none of the conditions that bar the application of the deemed insured status provisions (see § 404.1316) exists and the veteran died within 3 years after his separation from the active military or naval service. § 404.1319 Determination of benefits payable on deemed insured status and certification of payments. Where none of the conditions stated in § 404.1316 (a), (c), (d), and (f) exists, the rights of an individual applying for payment of benefits or a lump-sum death payment with respect to the death of a World War II veteran who died within 3 years after a separation from active service and before July 27, 1954, shall be determined without regard to the exIstence of a determination by the Vet

erans' Administration as to the payment of pension or compensation. Certification of payment may be made pursuant to such determination, subject, however to the effect of the receipt of a notice y the Secretary of a determination by the Veterans' Administration that pension or compensation is payable by it by reason of the death of such veteran. Neither National Service or United States Government Life Insurance payments nor burial allowance payments made by the Veterans' Administration are considered as pension or compensation.

§ 404.1320 Effect on determination and certification of payment under deemed insured status of receipt of notice of determination that pension or compensation is payable by Veterans' Administration.

(a) Notice received prior to determination and certification of payment. If the Veterans' Administration notifies the Secretary that it has made a determination that pension or compensation is payable (even though later terminated) under any law administered by it to anyone on the basis of the death of a World War II veteran, any benefits or lumpsum death payment payable under Title II with respect to the wages and selfemployment income of such veteran shall be determined without regard to the provisions in this subpart relating to the payment of benefits based on the deemed insured status of a veteran.

(b) Notice received after determination and certification of payment. If prior to the receipt of notice from the Veterans' Administration that pension or compensation is payable the Secretary has made a determination and certification as provided by § 404.1319, the Secretary, upon receipt of such notification, shall certify no further benefits for payment or shall recompute the amount of any further benefits as may otherwise be payable under Title II of the Act, and shall also determine the existence and amount of any erroneous payment. § 404.1321

When payment of benefits under deemed insured status is or is not deemed erroneous.

Where payments have been certified to an individual under the deemed insured status provision (see § 404.1315) and notice is thereafter received from the Veterans' Administration that pension or compensation is payable, all such payments certified for months beginning

with the first month such compensation or pension is payable are erroneous to the extent they are in excess of the amount of any such accrued pension or compensation payable to such individual. To the extent that such payments are not in excess of the amount of any accrued pension or compensation payable by the Veterans' Administration they are deemed to have been paid to such individual by the Veterans' Administration on account of such accrued pension or compensation, and are not erroneous. All payments certified under the deemed insured status provision (see § 404.1315) after notification from the Veterans' Administration that pension or compensation is payable, whether or not they are in excess of such accrued pension or compensation, are eironeous and subject to recovery under the provisions in Subpart F of this Part 404. All payments certified under the deemed insured provision for months before the first month such compensation or pension is payable are not erroneous.

§ 404.1322 Evidence of veteran's period of military service and separation from service.

In addition to such evidence of entitlement as is required by Subpart H of this Part 404 or as may be otherwise expressly required in connection with an application, an individual applying for benefits or a lump-sum death payment on the basis of the service of a World War II or post-World War II veteran pursuant to any of the provisions of this subpart shall file supporting evidence of such veteran's period of active military or naval service and of his discharge or release from the active military or naval service. Such evidence shall be:

(a) An original certificate of discharge, or an original certificate of service, from the appropriate branch of the armed forces, the United States Public Health Service, or from the United States Coast and Geodetic Survey; or

(b) A certified copy of the original certificate of discharge or service made by the State, county, or municipal agency or department in which the original certificate is recorded; or

(c) A certification from the appropriate branch of the armed forces, from the United States Public Health Service, or from the United States Coast and Geodetic Survey, as the case may be, indicating the veteran's period of active service and type of discharge; or

(d) A certification from a local selective service board indicating the veteran's period of active service and type of discharge; or

(e) Other evidence of probative value. § 404.1323 Filing evidence of support.

(a) Veteran of World War II. In the case of death of a World War II veteran, evidence of support required of a parent or widower of the deceased veteran (see Subparts D and H of this Part 404) shall be filed within 2 years of the date of such veteran's death unless extended under Subpart G of this Part 404, except that:

(1) Where benefits are payable to a parent or widower of the deceased veteran based on the veteran's service in the armed forces of a country which was, on September 16, 1940, at war with a country with which the United States was at war during World War II (see § 404.1304(a) (4)), such evidence of support may be filed at any time prior to the expiration of 2 years after the date of such veteran's death or before August 29, 1960, whichever is later.

(2) Where benefits are payable to a parent on the basis of the provisions of § 404.1308 based on the veteran's military or naval service in the armed forces of the United States such evidence of support may be filed at any time before the expiration of 2 years after the death of such veteran or before July 1951, whichever is later, unless such period for filing is extended under Subpart G of this Part 404.

(b) Veteran of post-World War II service. In the case of the death of a veteran of post-World War II service, evidence of support, required of a parent or widower of the deceased veteran under Subparts D and H of this Part 404, shall be filed within 2 years after the date of the veteran's death unless such period for filing is extended under Subpart G of this Part 404, except that in the case of a veteran who died prior to September 1952, evidence of support shall be deemed to have been filed within the 2-year period for filing proof of support if such evidence was filed prior to September 1954.

Subpart O-Interrelationship of OldAge, Survivors and Disability Insurance Program With the Railroad Retirement Program

AUTHORITY NOTE: The provisions of this Subpart O issued under secs. 202, 205, 216,

223, 227, 1102, 49 Stat. 623, as amended, 53 Stat. 1368, 64 Stat. 492, as amended, 70 Stat. 815, as amended, 79 Stat. 379, as amended, 49 Stat. 647; sec. 5, Reorg. Plan No. 1 of 1953, 67 Stat. 18, 631; 42 U.S.C. 402, 405, 416, 423, 427, 1302.

SOURCE: The provisions of this Subpart O appear at 18 F.R. 8694, Dec. 24, 1953; 19 F.R. 215, Jan. 12, 1954; 25 F.R. 5182, June 10, 1960, unless otherwise noted.

CROSS REFERENCE: For regulations under the Railroad Retirement Act, see Chapter II of this title.

§ 404.1401

General relationship of Railroad Retirement Act with the old-age, survivors and disability insurance program of the act.

The Railroad Retirement Act sets up a system of benefits for railroad employees, their dependents and survivors, and has in many respects been integrated with the Social Security Act to provide a coordinated system of retirement, survivor, dependent and disability benefits payable on the basis of an individual's work in the railroad industry and in employment and self-employment covered by the Social Security Act. With respect to the coordination of the two programs the Railroad Retirement Act distinguishes between "career" railroaders and those individuals who may be considered "casual" railroad workers, the line of demarcation being 10 years of service In the railroad industry, including service prior to 1937. It transfers to the oldage, survivors and disability insurance system individuals who at the time of retirement, onset of disability or death have less than 10 years of service in the railroad industry and meet certain other requirements. Any compensation paid to such individuals for such service becomes wages under the Social Security Act so that whatever benefits are payable to them, their dependents, or their survivors come from the old-age and survivors and disability insurance trust funds under the conditions set forth in title II of the Social Security Act. Those with 10 or more years of railroad service remain under the Railroad Retirement Act, except that under certain circumstances survivors of such workers may be shifted to the old-age, survivors and disability insurance system.

[25 F.R. 5182, June 10, 1960]

§ 404.1402 When services in the railroad industry are covered.

Services performed by an individual in the railroad industry which would,

but for the provisions of this section, be excepted from "employment" by reason of § 404.1017 shall be considered to be in "employment" as defined in section 210 of the act in the following situations:

(a) For the purpose of determining entitlement to or the amount of any monthly benefits or lump-sum death payment on the basis of the wages and selfemployment income of an individual whose years of service in the railroad industry are less than 10;

(b) For the purpose of determining entitlement to or the amount of any survivor monthly benefit or any lump-sum death payment on the basis of the wages and self-employment income of an individual whose years of service in the railroad industry at the time of death were 10 or more (see § 404.1406 for circumstances under which no payment may be made even though services are in "employment");

(c) For the purpose of determining entitlement to the establishment of a period of disability (see Subpart B of this Part 404) on the basis of the wages and self-employment income of an individual;

(d) For the purpose of applying the provisions of section 203 of the act (see Subpart E of this part).

[25 F.R. 5182, June 10, 1960]

The term "years of service" as used in this subpart has the same meaning as assigned to it by section 1(f) of the Railroad Retirement Act.

§ 404.1404 Effective date of coverage of railroad services under the act.

Coverage under the act of services performed after 1936 by an individual in the railroad industry is effective as follows:

(a) The provisions of paragraphs (a) and (b) of § 404.1402 insofar as they relate to survivor monthly benefits are effective for months after December 1946 and insofar as they relate to lump-sum death payments are effective with respect to deaths after 1946;

(b) The provisions of paragraph (a) of $ 404.1402 insofar as they relate to old-age insurance benefits or monthly benefits of dependents of old-age insurance beneficiaries are effective November 1, 1951; insofar as they relate to disability insurance benefits are effective for months after June 1957; and insofar as they relate to monthly benefits for

dependents of disability insurance beneficiaries are effective for months after August 1958;

(c) The provisions of paragraph (c) of § 404.1402 are effective for benefits for months after June 1955; and

(d) The provisions of paragraph (d) of § 404.1402 are effective November 1, 1951.

(25 F.R. 5182, June 10, 1960]

§ 404.1405

When the provisions of

§ 404.1402 do not apply.

(a) Awards by the Railroad Retirement Board prior to October 30, 1951. The provisions of § 404.1402(a) shall not apply with respect to the wages and self-employment income of an individual if, prior to October 30, 1951, the Railroad Retirement Board has awarded under the Railroad Retirement Act a retirement annuity to such individual or a survivor annuity with respect to the death of such individual and such retirement or survivor annuity, as the case may be, was payable at the time an application for benefits is filed under the act on the basis of the wages and self-employment income of such individual. A pension payable under section 6 of the Railroad Retirement Act or an annuity paid in a lump sum equal to its commuted value under section 3 (i) of the Railroad Retirement Act in effect prior to the act of October 30, 1951, is not a "retirement or survivor annuity" for the purpose of this paragraph.

(b) Individual continues to work in railroad industry after establishing entitlement to benefits under section 202 (a). An individual's service in the railroad industry used, pursuant to the provisions of § 404.1402, to establish entitlement to or to determine the amount of, his old-age insurance benefits under section 202 (a) shall not be deemed to be in "employment" as defined in section 210 of the act, if he renders service in the railroad industry after the effective date of such benefits and his years of service attributable thereto when added to his years of service prior to such effective date are 10 or more. Such benefits and any benefits payable to the spouse or child of such individual under sections 202 (b), (c), or (d) of the act on the basis of his wages and self-employment income shall be terminated with the month preceding the month in which such individual acquires his tenth year of service. If, however, an insured status

(see Subpart B of this part) exists without the use of compensation, such benefits shall, in lieu of termination, be recalculated without using such compensation and the recalculated benefits shall be payable with the month in which the tenth year of service was acquired. Any monthly benefits paid prior to such month shall not be deemed erroneous by reason of the use of such compensation.

§ 404.1406 Eligibility to railroad retirement benefits as a bar to payment of social security benefits.

Notwithstanding the fact that, pursuant to the preceding provisions of this subpart, services rendered by an individual in the railroad industry are in employment, no lump-sum death payment or survivor monthly benefits shall be paid (except as provided in § 404.1407) under the regulations in this part on the basis of such individual's wages and selfemployment income if any person, upon filing application therefor, would be entitled to an annuity under section 5 of the Railroad Retirement Act or a lumpsum payment under section 5(f) (1) of such act with respect to the death of such individual.

§ 404.1407 When railroad retirement benefits do not bar payment for social security benefits.

The provisions of § 404.1406 shall not operate if:

(a) The survivor is, or upon filing application, would be entitled to a monthly benefit with respect to the death of an insured individual for a month prior to January 1947, if such monthly benefit is greater in amount than the survivor annuity payable to such survivor after 1946 under the Railroad Retirement Act;

or

(b) The residual lump-sum payment provided by section 5(f) (2) of the Railroad Retirement Act with respect to the death of an insured individual is paid by the Railroad Retirement Board in accordance with the provisions of said section 5(f) (2) and pursuant to an irrevocable election filed with the Board by the widow, widower or parent of such individual to waive all future annuities or benefits based on the combined records of earnings and compensation to which such widow, widower or parent might otherwise become entitled, but only to the extent that widow's. widower's or parent's benefits may be payable under the regulation of this