Adjudication; pensions, compensation, dependency, etc.: Dependent entitlement to monetary benefits; definition of child,

[Federal Register: March 8, 2000 (Volume 65, Number 46)]

[Rules and Regulations]

[Page 12116-12117]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr08mr00-16]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ54

Child; Educational Institution

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the Department of Veterans Affairs (VA) adjudication regulations concerning the definition of a child for purposes of establishing entitlement to additional monetary benefits for a dependent. The amendments are necessary to clarify the definition of a child for VA purposes and to bring the regulations into conformance with the governing statutes as interpreted by VA's General Counsel. This document also makes non-substantive changes for purposes of clarity.

DATES: Effective Date: March 8, 2000.

FOR FURTHER INFORMATION CONTACT: Warren M. Jones, Consultant, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone (202) 273-7167.

SUPPLEMENTARY INFORMATION: A veteran who is entitled to compensation under the provisions of 38 U.S.C. 1114 or 1134 is also entitled, under certain circumstances, to additional compensation for dependents, including a child. A veteran who is entitled to pension under the provisions of 38 U.S.C. 1521 is entitled to a higher annual rate of pension because of dependents, including a child. Dependency and indemnity compensation and death pension are also monetary benefits affected by the number of the surviving spouse's dependent children, who, under certain circumstances, may be entitled to these benefits in their own right.

A ``child'' is defined in 38 U.S.C. 101(4)(A)(iii) to include a person who is unmarried, and after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years) is pursuing a course of instruction at an approved educational institution. The implementing regulation is at 38 CFR 3.57(a)(1)(iii).

Section 104(a) of title 38, United States Code, provides that for the purpose of determining whether or not benefits are payable (except those under chapter 35, title 38, United States Code) for a child over the age of eighteen and under the age of twenty-three years who is attending a school, college, academy, seminary, technical institute, university, or other educational institution, the Secretary may approve or disapprove such educational institutions.

In a precedent opinion dated March 19, 1998 (VAOPGCPREC 3-98), VA's General Counsel held that the term ``educational institution'' should be interpreted as including only institutions which are similar in type to the institutions specifically enumerated in 38 U.S.C. 104(a). According to the General Counsel, a home-school program differs from those institutions because the home-school program is not offered to a number of students, but rather is created to serve the needs of a particular student. Also, a home-school is not a permanent organization but rather disbands at completion of the student's program or withdrawal of the student. The General Counsel concluded, therefore, that a person who is receiving instruction in a home-school program is not pursuing a course of instruction at an educational institution and therefore does not qualify as a child within the meaning of 38 U.S.C. 101(4)(A)(iii). This document amends 38 CFR 3.57(a)(1)(iii) accordingly. This document also amends 38 CFR 3.667 to use statutory terminology and to make clarifying changes.

This final rule interprets statutory provisions and makes non- substantive changes. Accordingly, there is a basis under 5 U.S.C. 553 to dispense with prior notice and comment and a delayed effective date.

Because no notice of proposed rulemaking was required in connection with the adoption of this final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). Even so, the Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act.

The Catalog of Federal Domestic Assistance program numbers are 64.104, 64.105, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Veterans, Vietnam.

Approved: February 29, 2000. Togo D. West, Jr., Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation

1. The authority citation for part 3, subpart A continues to read as follows:

   Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. In Sec. 3.57, paragraph (a)(1)(iii) is revised to read as follows:

   Sec. 3.57 Child.

   (a) * * *

   (1) * * *

   (iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. For the purposes of this section and Sec. 3.667, the term ``educational institution'' means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria. The term includes schools, colleges, academies, seminaries, technical institutes, and universities, but does not include home- school programs.

   (Authority: 38 U.S.C. 101(4)(A), 104(a)) * * * * *

   Sec. 3.667 [Amended]

3. Section 3.667 is amended by removing ``approved school'' and ``approved course of instruction'' wherever they appear and adding, in their place, ``approved educational institution''.

4. Section 3.667 is further amended as follows:

   1. Paragraphs (a)(2) and (a)(4) are amended by removing ``based upon a course which'' and adding, in its place, ``based upon a course of instruction at an approved educational institution which'';

   2. The first sentence of paragraph (b) is amended by removing ``attending

      [[Page 12117]]

      school'' and adding, in its place, ``attending an approved educational institution''; and

   3. The last sentence of paragraph (a)(5) and paragraph (d) are revised to read as follows:

      Sec. 3.667 School attendance.

      (a) * * *

      (5) * * * Where the child was receiving dependency and indemnity compensation in its own right prior to age 18 and was not attending an approved educational institution on the 18th birthday but commences attendance at an approved educational institution after the 18th birthday, payments may be resumed from the commencing date of the course if evidence of such school attendance is filedwithin 1 year from that date. * * * * *

      (d) Transfers to other schools. When benefits have been authorized based upon school attendance and it is shown that during a part or all of that period the child was pursuing a different course in the same approved educational institution or a course in a different approved educational institution, payments previously made will not be disturbed. * * * * *

      [FR Doc. 00-5571Filed3-7-00; 8:45 am]

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