38 U.S.C. § 7426 — Retirement rights

Page 1234 TITLE 38—VETERANS’ BENEFITS § 7425 agencies, organizations, and individuals for travel and such reasonable subsistence expenses as are approved by the Secretary pursuant to such regulations— (A) in connection with their attendance at meetings or in performing advisory services concerned with the functions or activities of the Department; or (B) in connection with acceptance of signifi- cant awards or with activity related thereto concerned with functions or activities of the Department. (2) Any such payment may be retained by such officers and employees to cover the cost of such expenses or shall be deposited to the credit of the appropriation from which the cost of such expenses is paid, as may be provided in such reg- ulations. (Added Pub. L. 102–40, title IV, § 401(b)(3)(B), May 7, 1991, 105 Stat. 230; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 4108(d) and 4113 of this title prior to the repeal of those sections as part of the complete re- vision of chapter 73 of this title by Pub. L. 102–40. AMENDMENTS 1992—Subsec. (a). Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Director’’. § 7425. Employees: laws not applicable (a) Physicians, dentists, nurses, and other health-care professionals employed by the Ad- ministration and appointed under section 7306, 7401(1), 7405, or 7406 of this chapter are not sub- ject to the following provisions of law: (1) Section 413 of the Civil Service Reform Act of 1978. (2) Subchapter II of chapter 31 of title 5. (3) Subchapter VIII of chapter 33 of title 5. (4) Subchapter V of chapter 35 of title 5. (5) Subchapter II of chapter 43 of title 5. (6) Section 4507 of title 5. (7) Subchapter VIII of chapter 53 of title 5. (8) Subchapter V of chapter 75 of title 5. (b) Except as provided in subsection (c), and notwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of section 7306 of this title or this chapter shall be considered to supersede, override, or otherwise modify such provision of that section or this chapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this chapter, or such provision to be superseded, overridden, or otherwise modi- fied. (c) Notwithstanding any other provision of this subchapter, the Administration shall pro- vide to individuals appointed to any position de- scribed in section 7421(b) who are employed for compensation by the Administration, family and medical leave in the same manner and sub- ject to the same limitations to the maximum extent practicable, as family and medical leave is provided under subchapter V of chapter 63 of title 5 to employees, as defined in section 6381(1) of such title. (Added Pub. L. 102–40, title IV, § 401(b)(3)(B), May 7, 1991, 105 Stat. 231; amended Pub. L. 116–283, div. A, title XI, § 1103(d)(1), Jan. 1, 2021, 134 Stat. 3887.) Editorial Notes REFERENCES IN TEXT Section 413 of the Civil Service Reform Act of 1978, referred to in subsec. (a)(1), is section 413 of Pub. L. 95–454, title IV, Oct. 13, 1978, 92 Stat. 1175, which is set out as a note under section 3133 of Title 5, Government Organization and Employees. PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 4101(e) and 4119 of this title prior to the repeal of those sections as part of the complete re- vision of chapter 73 of this title by Pub. L. 102–40. AMENDMENTS 2021—Subsec. (b). Pub. L. 116–283, § 1103(d)(1)(A), sub- stituted ‘‘Except as provided in subsection (c), and not- withstanding’’ for ‘‘Notwithstanding’’. Subsec. (c). Pub. L. 116–283, § 1103(d)(1)(B), added sub- sec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 116–283, div. A, title XI, § 1103(d)(2), Jan. 1, 2021, 134 Stat. 3888, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall apply with respect to any event for which leave may be taken under subchapter V of chapter 63 of title 5, United States Code, occurring on or after October 1, 2020.’’ DEPARTMENT OF VETERANS AFFAIRS: INCLUDING MILI- TARY SERVICE IN DETERMINING FAMILY AND MEDICAL LEAVE ELIGIBILITY Pub. L. 118–31, div. A, title XI, § 1114(c), Dec. 22, 2023, 137 Stat. 432, provided that: ‘‘Not later than 6 months after the date of enactment of this Act [Dec. 22, 2023], the Secretary of Veterans Affairs shall modify the fam- ily and medical leave program provided by operation of section 7425(c) of title 38, United States Code, to con- form with the requirements of the amendment made by subsection (a) [amending section 6381 of Title 5, Gov- ernment Organization and Employees] with respect to military service in section 6381(1)(B)(ii) of title 5, United States Code, as added by such subsection.’’ § 7426. Retirement rights (a) Except as provided in subsection (b), per- sons appointed to the Administration shall be subject to the provisions of and entitled to bene- fits under subchapter III of chapter 83 of title 5 or subchapter II of chapter 84 of title 5, which- ever is applicable. (b)(1) In computing the annuity under sub- chapter III of chapter 83, or subchapter II of chapter 84, of title 5 of an individual who retires under such subchapter (other than under section 8337 or 8451 of such title) after December 31, 1981, and who served at any time on a less-than-full- time basis in a position in the Administration to which such individual was appointed under sub- chapter I— (A) for the purpose of determining such indi- vidual’s average pay, as defined by section Page 1235 TITLE 38—VETERANS’ BENEFITS § 7431 8331(4) or 8401(3) of title 5, whichever is appli- cable, the annual rate of basic pay for full- time service shall be deemed to be such indi- vidual’s rate of basic pay; and (B) the amount of such individual’s annuity as computed under section 8339 or 8415 of title 5 (before application of any reduction required by subsection (i) of section 8339) shall be mul- tiplied by the fraction equal to the ratio that that individual’s total full-time equivalent service bears to that individual’s creditable service as determined under section 8332 or 8411 of title 5, whichever is applicable. (2) For the purposes of paragraph (1)(B), an in- dividual’s full-time equivalent service is the in- dividual’s creditable service as determined under section 8332 or 8411 of title 5, whichever is applicable, except that any period of service of such individual served on a less-than-full-time basis shall be prorated based on the fraction such service bears to full-time service. For the purposes of the preceding sentence, full-time service shall be considered to be 80 hours of serv- ice per biweekly pay period. (3) A survivor annuity computed under section 8341, or subchapter IV of chapter 84, of title 5 based on the service of an individual described in paragraph (1) shall be computed based upon such individual’s annuity as determined in ac- cordance with such paragraph. (c) The provisions of subsection (b) shall not apply to the part-time service before April 7, 1986, of a registered nurse, physician assistant, or expanded-function dental auxiliary. In com- puting the annuity under the applicable provi- sion of law specified in that subsection of an in- dividual covered by the preceding sentence, the service described in that sentence shall be cred- ited as full-time service. (Added Pub. L. 102–40, title IV, § 401(b)(3)(B), May 7, 1991, 105 Stat. 231; amended Pub. L. 102–585, title V, § 522, Nov. 4, 1992, 106 Stat. 4959; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(g)(5)], Oct. 30, 2000, 114 Stat. 1654, 1654A–294; Pub. L. 107–135, title I, § 132, Jan. 23, 2002, 115 Stat. 2454.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 4107(i) and 4109 of this title prior to the repeal of those sections as part of the complete re- vision of chapter 73 of this title by Pub. L. 102–40. AMENDMENTS 2002—Subsec. (c). Pub. L. 107–135 added subsec. (c). 2000—Subsec. (c). Pub. L. 106–398 struck out subsec. (c) which read as follows: ‘‘The Secretary may author- ize an exception to the restrictions in subsections (a), (b), and (c) of section 5532 of title 5 if necessary to meet special or emergency employment needs which result from a severe shortage of well-qualified candidates in physician positions, and registered nurse positions, which otherwise cannot be readily met. The authority of the Secretary under the preceding sentence with re- spect to registered-nurse positions expires on December 31, 1994.’’ 1992—Subsec. (c). Pub. L. 102–585 substituted ‘‘Decem- ber 31, 1994’’ for ‘‘September 30, 1992’’. SUBCHAPTER III—PAY FOR PHYSICIANS, PODIATRISTS, OPTOMETRISTS, AND DEN- TISTS APPLICABILITY OF AMENDMENT Amendment of analysis by Pub. L. 118–210 ap- plicable to any pay period of the Department of Veterans Affairs beginning on or after the date that is 180 days after Jan. 2, 2025. See 2025 Amendment note below. Editorial Notes CODIFICATION This subchapter was originally added by Pub. L. 102–40, May 7, 1991, 105 Stat. 187, and amended by Pub. L. 102–405, Oct. 9, 1992, 106 Stat. 1972; Pub. L. 104–262, Oct. 9, 1996, 110 Stat. 3177; Pub. L. 103–446, Nov. 2, 1994, 108 Stat. 4645; Pub. L. 106–419, Nov. 1, 2000, 114 Stat. 1822. This subchapter is shown here, however, as having been added by Pub. L. 108–445, § 3(b), Dec. 3, 2004, 118 Stat. 2636, without reference to those intervening amend- ments because of the general amendment of this sub- chapter by Pub. L. 108–445. AMENDMENTS 2024—Pub. L. 118–210, title I, § 142(a)(4)(A), Jan. 2, 2025, 138 Stat. 2746, inserted ‘‘OPTOMETRISTS,’’ after ‘‘PO- DIATRISTS,’’ in subchapter heading. 2019—Pub. L. 116–12, § 1(b)(3), Apr. 8, 2019, 133 Stat. 845, inserted ‘‘, PODIATRISTS,’’ after ‘‘PHYSICIANS’’ in subchapter heading. 2004—Pub. L. 108–445, § 3(b), Dec. 3, 2004, 118 Stat. 2636, substituted ‘‘PAY FOR PHYSICIANS AND DENTISTS’’ for ‘‘SPECIAL PAY FOR PHYSICIANS AND DEN- TISTS’’ in subchapter heading. § 7431. Pay (a) ELEMENTS OF PAY.—Pay of physicians, po- diatrists, optometrists, and dentists in the Vet- erans Health Administration shall consist of three elements as follows: (1) Base pay as provided for under subsection (b). (2) Market pay as provided for under sub- section (c). (3) Performance pay as provided under sub- section (d). (b) BASE PAY.—One element of pay for physi- cians, podiatrists, optometrists, and dentists shall be base pay. Base pay shall meet the fol- lowing requirements: (1) Each physician, podiatrist, optometrist and dentist is entitled to base pay determined under the Physician, Podiatrist, and Dentist Base and Longevity Pay Schedule. (2) The Physician, Podiatrist, and Dentist Base and Longevity Pay Schedule is composed of 15 rates of base pay designated, from the lowest rate of pay to the highest rate of pay, as base pay steps 1 through 15. (3) The rate of base pay payable to a physi- cian, podiatrist, optometrist or dentist is based on the total number of the years of the service of the physician, podiatrist, optom- etrist or dentist in the Veterans Health Ad- ministration as follows: For a physician, podiatrist, optometrist or dentist with total service of: The rate of base pay is the rate payable for: two years or less ................................ step 1