§ 208.7

Annuities for employees.

(a) Subject to the provisions of paragraphs (b) and (c) of this section, an individual who has been an employee on or after August 29, 1935, has completed 10 years of service, and has ceased to render service for compensation to any person, whether or not an employer under the act, is eligible for an annuity if:

(1) The individual has attained the age of 65, or the individual is a woman, and (i) has attained the age of 60 and (ii) has completed at least 354 months of service, or

(2) The individual is a man who has attained age 60 and has completed at least 354 months of service, or the individual is a man or woman who has attained age 62 and has completed less than 354 months of service, but the annuity of such an individual shall be reduced by 180 for each calendar month during all of which he or she is under age 65 when the annuity begins to accrue, or (3) The individual has a current connection with the railroad industry and his permanent physical or mental condition, as that term is defined in § 208.10, is such as to be disabling for work in his regular occupation, and (1) has completed at least 234 months of service, or (ii) has attained the age of 60, or

(4) The individual's permanent physical or mental condition, as that term is defined in § 208.10, is such as to be disabling for work in any regular employment.

(b) No annuity shall be certified for payment to an individual until such time as he has filed with the Board a duly executed application form, has established by proof satisfactory to the Board that he possesses all the qualifications therefor, and, except for an individual whose eligibility for an annuity is determined in accordance with paragraph (a) (3) or (4) of this section, has relinquished rights to return to service as required by Part 216 of this chapter. In no case shall an annuity begin to accrue earlier than (1) twelve months prior to the date upon which the application therefor was filed with the Board, or (2) the day following the last day of the applicant's compensated service: Provided, however, That where such date falls on the thirty-first day of any month

An

the annuity shall begin to accrue on the first day of the following month. individual whose eligibility for an annuity is determined in accordance with paragraph (a) (3) or (4) of this section, shall relinquish rights to return to service as required by Part 216 of this chapter upon his attainment of age 65.

(c) Except as provided in § 208.31 and § 210.11 or § 210.12 of this chapter, after an annuity has been awarded to an individual under this part, he shall not be entitled to another kind of annuity under this part even though he was eligible at the time of the award, or subsequently became eligible, for another kind of annuity.

[12 F.R. 861, Feb. 6, 1947, as amended by Board Order 55-89, 20 FR. 3706, May 27, 1955; Board Order 62-33, 27 F.R. 3321, Apr. 7, 1962; Board Order 65-36, 30 F.R. 4061, Mar. 27, 1965; Board Order 66-15, 31 F.R. 3177, Feb. 26, 1966]

§ 208.9 Regular occupation defined.

For the purpose of an annuity under § 208.7(a) (3), an individual's regular occupation shall be his occupation in the railroad industry in which (a) he has been engaged in service for hire, including service for hire outside the railroad industry, in more calendar months than the calendar months in which he has been engaged in service for hire in any other occupation, whether or not in the railroad industry, during the last preceding five calendar years, whether or not consecutive, or (b) he has been engaged in service for hire, including service for hire outside the railroad industry in not less than one-half of all the months in which he has been engaged in service for hire, whether or not in the railroad industry, during the last preceding 15 consecutive calendar years. [12 F.R. 861, Feb. 6, 1947] § 208.10

Permanent physical or mental condition defined.

(a) For the purpose of an annuity under §§ 208.7(a) (3) and 208.7(a) (4), and § 237.409 of this chapter, the term "permanent physical or mental condition" means a physical or mental impairment that can be expected to result in death or has lasted, or can be expected to last for a continuous period of not less than 12 months.

(b) A determination as to whether or not an individual's permanent physical or mental condition is such as to be dis

abling for work in his regular occupation or in any regular employment made on or after February 10, 1966, shall be made under the provisions of this section: Provided, however, That any annuity for which an individual may be found entitled solely by reason of this section shall not accrue before September 1, 1965.

(c) In any case in which an annuity under the provisions of §§ 208.7(a) (3) or 208.7(a) (4), or § 237.409 of this chapter has previously been denied because the determination of disability for work in the applicant's regular occupation or in any regular employment was made under the provisions of this chapter in effect prior to February 10, 1966, the decision denying the claim in whole or in part may be reopened and reconsidered under the provisions of this section: Provided, however, That any annuity for which an individual may be found entitled solely by reason of this section shall not accrue before September 1, 1965, or more than 12 months before the date of such reopening whichever is later.

[Board Order 66-15, 31 FR. 8177, Feb. 26, 1966]

§ 208.11

Establishment of permanent disability for work in the applicant's "regular occupation".

(a) An individual shall be deemed to be permanently disabled for work in his regular occupation, whether or not he has been disqualified for such work by his employer, if he has a permanent physical or mental condition, as that term is defined in § 208.10, and he is, in accordance with the occupational disability standards established by the Board, because of such condition physically or mentally unable to perform the duties of such occupation. The cause of the disabling physical or mental condition is immaterial. If the employee's regular occupation is one with respect to which occupational disability standards have not been established by the Board, the occupational disability standards established by the Board for a reasonably comparable occupation in the railroad industry shall govern the determination of the individual's inability to work in his regular occupation; and in the absence of such comparable occupation, such determination shall be made by as

certaining whether under the practices generally prevailing in other industries having such occupation, the individual's physical or mental condition is a permanent disqualification for work in his regular occupation. The condition of permanent disability for work in the individual's regular occupation must be established in each particular case in the manner and to the extent prescribed by the Board.

(b) In the case of an individual whose last employment was as an officer or employee of a railway labor organization, including a subordinate unit "employer" and to whom continuance in such employment is not available, the disability standards to be applied shall be those applicable to the position to which the individual holds seniority rights or from which he left to assume a position with a railway labor organization.

[Board Order 53-85, 18 F. R. 2335, Apr. 22, 1953, as amended by Board Order 66–15, 31 F.R. 3177, Feb. 26, 1966]

§ 208.17 Establishment of permanent disability for work in any regular employment.

(a) An individual shall be deemed to be permanently disabled for work in any regular employment if he has a permanent physical or mental condition, as that term is defined in § 208.10, and he is because of such condition unable to perform regularly, in the usual and customary manner, the substantial and material duties of any regular and gainful employment which is substantial and not trifling, with any employer, whether or not subject to the act.

(b) The condition of permanent disability for any regular employment must be established in each particular case in the manner and to the extent prescribed by the Board. The following disabilities, while not an exclusive or exhaustive catalogue of conditions under which an individual may be considered permanently disabled from engaging in any regular employment are disabilities from which the Board will presume, in the absence of facts to the contrary, that an individual is so disabled:

(1) Loss of, or permanent loss of use of, both feet.

(2) Loss of, or permanent loss of use of both hands.

(3) Loss of, or permanent loss of use of, one hand and one foot.

(4) Permanent industrial blindness (corrected vision of twenty two-hundredths or less in both eyes).

(5) Permanent total loss of hearing in both ears (inability to hear the conversational tone of voice at any distance) unless offset or capable of being offset by some practicable device.

(6) Permanently helpless or permanently bedridden.

(7) Aphonia (complete loss of vocalization (phonetic) from organic, i.e., nonfunctional cause).

[12 F.R. 861, Feb. 6, 1947, as amended by Board Order 66-15, 31 F.R. 3177, Feb. 26, 1966]

§ 208.25 Proof of continuance of disability.

An individual who has been awarded an annuity upon the basis of his having become permanently disabled for any regular employment, or upon the basis of his having become permanently disabled for work in his regular occupation, shall, as and whenever notified by the Board, submit any information which the Board may require relating to his employment, including self-employment, and earnings therefrom, while in the receipt of such an annuity, and shall submit to an examination to be made by a physiclan, or physicians, or a board of physicians, designated by the Board. The Board may at any time or times require additional proof of the continuance of the disability which served as the basis for awarding such annuity. The provisions of this section shall not apply to an individual after he has attained age 65. [Board Order 66-15, 31 F.R. 3177, Feb. 26, 1966] § 208.27 Disability annuitant to notify of recovery from disability and of employment or self-employment.

It shall be the duty of an individual awarded an annuity upon the basis of permanent disability for any regular employment, or upon the basis of permanent disability for work in his regular Occupation, to notify the Board before he attains age 65 of his recovery from such disability and of any employment or self-employment as prescribed in 217.3 of this chapter.

[Board Order 60-8, 25 F.R. 720. Jan. 28, 1960]

§ 208.29 Cessation of disability annuities.

(a) An annuity awarded to an individual upon the basis of his having become permanently disabled for any regular employment, or upon the basis of his having become permanently disabled for work in his regular occupation, shall cease before the individual attains age 65 as of the last day of:

(1) The month in which he recovers from such disability; or

(2) The month preceding the month in which he dies, regardless of his age;

or

(3) The month following the month in which a notice was mailed to him requiring him to furnish additional proof of the continuance of his disability, if he failed to comply with such notice; or

(4) The month in which the Board receives notice of his failure to appear for, or submit to, a required examination;

or

(5) The month in which he was required to furnish the Board with any information relating to employment, earnings and his physical or mental condition, if he failed to furnish such information.

(b) The annuity of an individual based upon either the disability described in § 208.7(a) (3) or (4) who fails to relinquish rights to return to service in accordance with Part 216 of this chapter shall be suspended as of the end of the month in which he attains age 65.

(c) Annuity payments which ceased by reason of noncompliance with the provisions of one or more of paragraphs (a) (3) through (5) of this section shall be restored if within a reasonable time the annuitant shows good cause for such noncompliance.

[Board Order 60-8, 25 F.R. 720, Jan. 28, 1960] § 208.31 Cessation of disability annuity

not prejudicial to further eligibility. The cessation pursuant to section 208.29 of a disability annuity shall not prejudice any rights of the individual, formerly in receipt of such annuity, to any annuity to which he may thereafter become entitled; and for such purpose, years of service acquired by such an individual whose annuity shall have so ceased prior to age 65 may be credited with the same effect as if no annuity had previously been awarded.

[Board Order 60-8, 25 F.R. 720, Jan. 28, 1960]

AUTHORITY: The provisions of this Part 209 issued under secs. 3, 10, 50 Stat. 310, as amended, 314, as amended; 45 U.S.C. 228c, 2281.

§ 209.1 Statutory provisions.

(a) For the purposes of determining eligibility for an annuity and computing an annuity, including a minimum annuity, there shall also be included in an individual's years of service, within the limitations hereinafter provided in this section, voluntary or involuntary military service of an individual within or without the United States during any war service period, including such milltary service prior to the date of enactment of this amendment: Provided, however, That such military service shall be included only subject to and in accordance with the provisions of subsection (b) of section 3, in the same manner as though military service were service rendered as an employee: Provided further, That an individual who entered military service prior to a war service period shall not be regarded as having been in military service in a war service period with respect to any part of the period for which he entered such military service.

(b) For the purpose of this section and section 202, as amended, an individual shall be deemed to have been in "military service" when commissioned or enrolled in the active service of the land or naval forces of the United States and until resignation or discharge therefrom; and the service of any individual in any reserve component of the land or naval forces of the United States, while serving in the land or naval forces of the United States for any period, even though less than thirty days, shall be deemed to have been active service in such force during such period.

(c) For the purpose of this section and section 202, as amended, a "war service period" shall mean (1) any war period, or (2) with respect to any particular individual, any period during which such individual (1) having been in military service at the end of the war period, was required to continue in military service, or (11) was required by call of the President, or by any Act of Congress or regulation, order, or proclamation pursuant thereto, to enter and continue in military service, or (3) any period after September 7, 1939, with respect to which a

state of national emergency was duly declared to exist which requires a strengthening of the national defense.

(d) For the purpose of this section and section 202, as amended, a "war period" shall be deemed to have begun on whichever of the following dates is the earliest: (1) the date on which the Congress of the United States declared war; or (2) the date as of which the Congress of the United States declared that a state of war has existed; or (3) the date on which war was declared by one or more foreign states against the United States; or (4) the date on which any part of the United States or any territory under its jurisdiction was invaded or attacked by any armed force of one or more foreign states; or (5) the date on which the United States engaged in armed hostilities for the purpose of preserving the Union or of maintaining in any State of the Union a republican form of government.

(e) For the purpose of this section and section 202, as amended, a "war period" shall be deemed to have ended on the date on which hostilities ceased.

(f) Military service shall not be included in the years of service of an individual unless, prior to the beginning of his military service in a war service period and in the same calendar year in which such military service began, or in the next preceding calendar year, the individual rendered service for compensation to an employer or to a person service to which is otherwise creditable under this Act, or lost time as an employee for which he received remuneration, or was serving as an employee representative.

(g) A calendar month in which an individual was in military service which may be included in the individual's years of service or service period, as the case may be, shall be counted as a month of service: Provided, however, That no calendar month shall be counted as more than one month of service. (h) [Reserved]

(1) In the event military service is or has been used as the basis or as a partial basis for a pension, disability compensation, or any other gratuitous benefits payable on a periodic basis under any other Act of Congress, any annuity under this Act or the Railroad Retirement Act of 1935, which is based in part on such military service and is with respect to a calendar month for all or part of which such pension or other benefit is also payable, shall be reduced with respect to that month by the proportion which the number of years of service, by which such military service increases the years of service, or the service period, as the case may be, bears to the total years of service, or by the aggregate amount of such pension or other benefit with respect to that month, whichever would result in the smaller reduction.

(1) Any department or agency of the United States maintaining records of military service, at the request of the Board, shall certify to the Board, with respect to any in

dividual, the number of months of military service which such department or agency finds the individual to have had during any period or periods with respect to which the Board's request is made, the date and manner of entry into such military service, and the conditions under which such service was continued. Any department or agency of the United States which is authorized to make awards of pensions, disability compensation, or any other gratuitous benefits or allowances payable, on a periodic basis or otherwise, under any other Act of Congress on the basis of military service, at the request of the Board, shall certify to the Board, with respect to any individual, the calendar months for all or part of which any such pension, compensation, benefit, or allowance is payable to, or with respect to, the individual, the amounts of any such pension, compensation, benefit, or allowance, and the military service on which such pension, compensation, benefit, or allowance is based. Any certifcation made pursuant to the provisions of this subsection shall be conclusive on the Board: Provided, That if evidence inconsistent with any such certification is submitted, and the claim is in the course of adjudication or is otherwise open for such evidence, the Board shall refer such evidence to the department or agency which made the original certification and such department or agency shall make such recertification as in its judgment the evidence warrants. Such recertification, and any subsequent recertifications, shall be conclusive, made in the same manner, and subject to the same conditions as an original certification.

(k) No person shall be entitled to an annuity, or to an increase in an annuity, based on military service unless a specific claim for credit for military service is filed with the Board, and in no case shall an annuity, or an increase in an annuity, based on military service begin to accrue earlier than twelve months prior to the date on which such claim for credit for military service was filled with the Board nor before October 8, 1940: Provided, That this subsection shall not be construed to prevent payment of annuities with respect to accruals, not based on military service, prior to the date on which an annuity based on military service began to

accrue.

(1) An individual who, before the ninetyfirst day after the date on which this amendment of section 4 is enacted was awarded an annuity under the Railroad Retirement Act of 1937 or the Railroad Retirement Act of 1935, but who had rendered military service which, if credited, would have resulted in an increase in his annuity, may, notwithstanding the previous award of an annuity, file with the Board an application for an increase in such annuity based on his military service. Upon the filing of such application, if the Board finds that the military service thus claimed is creditable and would result in an

increase in the annuity, the Board, notwithstanding the previous award, shall recertify the annuity on an increased basis in the same manner as though the provisions making military service creditable had been in effect at the time of the original certification subject, however, to the provisions of subsection (k) of this section. If the annuity previously awarded is a joint and survivor annuity, the increased annuity shall be a joint and survivor annuity of the same type, the actuarial value of the increase to be computed as of the effective date of the increase: Provided, however, That if on the date the increase begins to accrue the individual has no spouse for whom the election of the joint and survivor annuity was made, the increase on a single life basis shall be added to the individual's annuity.

(m) [Reserved]

(n) In addition to the amount authorized to be appropriated in subsection (a) of section 15 of this Act, there is hereby authorized to be appropriated to the Railroad Retirement Account for each fiscal year, beginning with the fiscal year ending June 30, 1941, (1) an amount sufficient to meet the additional cost of crediting military service rendered prior to January 1, 1987, and after June 30, 1963, and (2) an amount found by the Board to be equal to the amount of the total additional excise and income taxes which would have been payable during the preceding fiscal year under Subchapter B of Chapter 9 of the Internal Revenue Code, as amended, with respect to the compensation, as defined in such Subchapter B, of all individuals entitled to credit under the Railroad Retirement Acts, as amended, for military service after December 31, 1936, and prior to January 1, 1957, if each of such individuals, in addition to compensation actually earned, had earned such compensation in the amount of $160 in each calendar month in which he was in such military service during such preceding fiscal year and such taxes were measured by all such compensation without limitation as to amount earned by any individual in any one calendar month, and (3) an amount found by the Board to be equal to (A) the amount of the total additional excise and income taxes which would have been payable during the preceding fiscal year under chapter 22 of the Internal Revenue Code of 1954 with respect to the compensation, as defined in such chapter, of all individuals entitled (without regard to subsection (p) (1) of this section) to credit under this Act for military service after December 31, 1956, and before July 1, 1963, if each of such individuals, in addition to compensation actually paid, had been paid such compensation in the amount of $160 in each calendar month in which he was in such military service during such preceding fiscal year and such taxes were measured by all such compensation without limitation as to amount paid to any individual