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 erroneous 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 in 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 veter

an'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 the 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 filling 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 sec. 202, 49 Stat. 623, as amended, sec. 216, 64 Stat. 492, as

amended, sec. 223, 70 Stat. 815, as amended; 42 U.S.C. 402, 416, 423.

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] § 404.1403

ice".

Definition of “years of serv

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 bene

ficaries 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 with

out 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

Where, pursuant to the preceding provisions of this subpart, services rendered by an individual in the railroad industry are considered to be in employment as defined in section 210 of the Social Security Act (see Subpart K) any compensation (as defined in section 1(h) of the Railroad Retirement Act) received by such individual for such services shall constitute wages provided that the provisions of § 404.1406 do not operate to bar the payment of benefits under Title II of the Social Security Act; except that any compensation attributable as having been paid during any month on account of military service creditable under section 4 of the Railroad Retirement Act shall not constitute wages for purposes of Title II of the Social Security Act if, based on such military service, wages are deemed to have been paid to such individual during such month under the provisions described in § 404.1308 or § 404.1309.

[28 F.R. 1037, Feb. 2, 1963]

§ 404.1409 Purposes of using compensation.

Compensation which is treated as wages under § 404.1408 shall be used, together with wages (see Subpart K of this part) and self-employment income (see Subpart K of this part), for purposes of:

(a) Determining an individual's insured status for monthly benefits or the lump-sum death payment (see Subpart B of this part);

(b) Computing such individual's primary insurance amount (see Subpart C of this part);

(c) Determining an individual's entitlement to the establishment of a period of disability (see Subpart B of this part for disability insured status requirements); and

(d) Applying the deduction provisions of section 203 of the act (see Subpart E of this part).

[25 F.R. 5183, June 10, 1960]

§ 404.1410

Presumption on basis of cer

tified compensation record.

Where the Railroad Retirement Board certifies to the Administration a report of record of compensation, which is treated as wages under § 404.1408, and periods of service which does not identify the months or quarters in which such compensation was paid, the sum of the compensation quarters of coverage (see § 404.1412) will be presumed, in the absence of evidence to the contrary, to represent an equivalent number of quarters of coverage (see §§ 404.103 and 404.104). No more than four quarters of coverage shall be credited to an individual in a single calendar year. However, if such individual also had selfemployment income for a taxable year and the sum of such income and wages (including compensation which is treated as wages under § 404.1408) paid to him during such taxable year equals $3,600 in any taxable year beginning after 1950 and ending before 1955, or equals $4,200 in any taxable year ending after 1954 and before 1959 or equals $4,800 in any taxable year ending after 1958, each calendar quarter any part of which falls in such taxable year shall be a quarter of coverage.

[25 F.R. 5183, June 10, 1960]

§ 404.1411 Allocation of compensation to months of service.

If by means of the presumption under § 404.1410:

(a) An individual does not have an insured status (see Subpart B of this part) on the basis of the quarters of coverage with which he is credited; or

(b) A deceased individual's average monthly wage (see § 404.205) may be affected because he attained age 22 after 1936, the Administration will request the Railroad Retirement Board to furnish & report of the months in which such individual rendered services for compensation which is treated as wages under § 404.1408 if it appears that identification of such months may result in an insured status or if it will affect such average monthly wage.

§ 404.1412 Compensation quarter of

coverage.

As used in this subpart, a compensation quarter of coverage is any quarter of coverage computed with respect to compensation paid to an individual for railroad employment after 1936 in

accordance with the provisions for determining such quarters of coverage as contained in section 5(1) (4) of the Railroad Retirement Act.

Subpart P-Rights and Benefits

Based on Disability

AUTHORITY: The provisions of this Subpart P issued under secs. 202, 205, 216(i), 221, 222, 223, 225, and 1102, Social Security Act 49 Stat. 623 as amended, 53 Stat. 1368, as amended, 68 Stat. 1080, as amended, 68 Stat. 1081, as amended, 68 Stat. 1082, as amended, 70 Stat. 815, as amended, 70 Stat. 817, as amended, 40 Stat. 647, as amended, 81 Stat. 821; sec. 5, Reorganization Plan No. 1 of 1953, 67 Stat. 18; 42 U.S.C. 402, 405, 416(1), 421, 422, 423, 425, and 1302.

SOURCE: The provisions of this Subpart P appear at 33 F.R. 11749, Aug. 20, 1968, unless otherwise noted.

§ 404.1501 Disability defined.

(a) For disability benefits-(1) Benefits for months after August 1965. Disability means:

(i) For purposes of determining entitlement to disability insurance benefits under section 223 of the Act, or to child's insurance benefits (based on the child's disability) under section 202(d) of the Act, for months after August 1965, inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or impairments which can be expected to result in death or which have lasted or can be expected to last for a continuous period of not less than 12 months;

(ii) For purposes of determining entitlement to disability insurance benefits in a case of an individual who has attained the age of 55 and is blind (as defined in paragraph (b) (1) (ii) (a) of this section for benefits for months before February 1968 or for months after January 1968 based on applications filed before January 3, 1968, and in paragraph (b) (1) (ii) (b) of this section for benefits for months after January 1968 based on applications filed after January 2, 1968), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time.

(iii) For purposes of determining entitlement to widow's or widower's insurance benefits (based on the widow's or widower's disability) under section

202 (e) or (f) of the Act, respectively, for months after January 1968, the existence of a medically determinable physical or mental impairment or impairments expected to result in death or which have lasted or can be expected to last for a continuous period of not less than 12 months and of a level of severity deemed (pursuant to § 404.1504) sufficient to preclude an individual from engaging in any gainful activity.

The meanings of "disability" described in this subparagraph (1) are applicable in the case of an application for (a) disability insurance benefits under section 223 of the Act or child's insurance benefits under section 202(d) of the Act filed after June 1965 (or before July 1965 if the individual did not die before July 1965, and notice of the Secretary's final decision on such application was not given before that month or, if so given, a civil action was commenced to review such decision and the decision of the court thereon did not become final before July 1965); and (b) widow's insurance benefits under section 202(e) of the Act or widower's insurance benefits under section 202(f) of the Act, based on the disability of the widow or widower, filed in or after the month of January 1968.

(2) Benefits for months before September 1965. For purposes of determining entitlement to disability insurance benefits or child's insurance benefits (based on the child's disability) for months before September 1965 (irrespective of date of application) "disability" means inability to engage in any substantial gainful activity because of any medically determinable physical or mental impairment which can be expected to continue for a long and indefinite period of time, or to result in death.

(b) For period of disability—(1) Application filed or final decision rendered after June 1965. For establishment of a period of disability where an application is filed after June 1965, "disability"

means:

(i) Inability to engage in any substantial gainful activity because of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or

(ii) Blindness, without regard to ability to engage in any substantial gainful activity, hereinafter also referred to as