Adjudication; pensions, compensation, dependency, etc.: Surviving spouse's benefit for month of veteran's death,
[Federal Register: June 8, 1999 (Volume 64, Number 109)]
[Rules and Regulations]
[Page 30391-30392]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn99-11]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AJ64
Surviving Spouse's Benefit for Month of Veteran's Death
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
SUMMARY: This document amends the Department of Veterans Affairs (VA) adjudication regulation governing payment of death benefits to an eligible surviving spouse for the month of the veteran's death. This amendment allows payment of such benefits at the rate that would have been paid to the veteran had he or she not died where the monthly amount of dependency and indemnity compensation or pension payable to the veteran's spouse is equal to the amount of benefits the veteran would have otherwise received for the month of his or her death. This amendment is required by statute.
DATES: Effective Date: June 8, 1999.
FOR FURTHER INFORMATION CONTACT: Don England, Chief, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone (202) 273-7210.
SUPPLEMENTARY INFORMATION: Section 5111(a) of title 38, United States Code, prohibits payment of compensation, pension, or dependency and indemnity compensation (DIC) benefits for any period before the first day of the month following the month in which an award or increased award of benefits was effective. In effect, VA generally may not pay first-time or increased benefits for any part of the first calendar month of entitlement. (See also 38 CFR 3.31).
Section 5111(c) provides certain exceptions to the general prohibition in section 5111(a), including the following:
(Section 5111) shall apply to payments made pursuant to section 5310 of this title only if the monthly amount of [DIC] or pension payable to the surviving spouse is greater than the amount of compensation or pension the veteran would have received, but for such veteran's death, for the month in which such veteran's death occurred.
Section 5310 of title 38, United States Code, provides authority under which VA may pay to a surviving spouse the amount of benefits which the veteran would otherwise have received for the month of his or her death. (When a veteran receiving compensation or pension dies, VA terminates his or her benefit payments effective the last day
[[Page 30392]]
of the month prior to the month of death. See 38 U.S.C. 5112(b)(1).) Under section 5310(a), if a surviving spouse is entitled to certain death benefits for the month of the veteran's death, the amount of benefits payable for that month ``shall be not less'' than the amount of compensation or pension the veteran would have received if he or she had not died.
VA has implemented the provisions of section 5111(c)(1) at 38 CFR 3.20(b) and 3.31(c)(1). In a recent opinion (VAOPGCPREC 10-98), VA's General Counsel pointed out that language in 38 CFR 3.20(b) is inconsistent with 38 U.S.C. 5111(c)(1). Section 5111(c)(1) provides, with respect to payments under section 5310, that payment for the first calendar month of entitlement is prohibited only if the amount of DIC or death pension payable exceeds the amount of compensation or pension that would have been payable to the veteran. Section 3.20(b), however, provides that payment for the first calendar month is permitted only if the amount of compensation or pension that would have been payable to the veteran exceeds the amount of DIC or death pension payable. These two provisions give different results if the amount of DIC or death pension payable equals the amount of compensation or pension that would have been payable to the veteran. In this situation, the statute would allow payment for the month of death, but the regulation would not. To that extent, 38 CFR 3.20(b) is inconsistent with section 5111(c)(1) of the statute.
Accordingly, we are amending Sec. 3.20(b) to make it consistent with the statute. It now provides that a surviving spouse may receive payment for the month of the veteran's death if the veteran's rate of benefits is equal to or greater than the rate of death pension or DIC payable to the surviving spouse.
This final rule simply corrects VA regulations to reflect statutory requirements. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.
Because no notice of proposed rule making 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 64.105 and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Veterans, Vietnam.
Approved: May 21, 1999. 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
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The authority citation for part 3, subpart A continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Sec. 3.20 [Amended]
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In Sec. 3.20, the first sentence of paragraph (b) is amended by adding ``equal to or'' immediately after ``if such rate is''.
[FR Doc. 99-14141Filed6-7-99; 8:45 am]
BILLING CODE 8320-01-P
