Adjudication; pensions, compensation, dependency, etc.: Terminated marital relationships; reinstatement of benefits eligibility,

[Federal Register: June 7, 1999 (Volume 64, Number 108)]

[Rules and Regulations]

[Page 30244-30245]

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

[DOCID:fr07jn99-10]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ53

Reinstatement of Benefits Eligibility Based Upon Terminated Marital Relationships

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

[[Page 30245]]

SUMMARY: This document amends the Department of Veterans Affairs (VA) adjudication regulations to state that the remarried surviving spouse of a veteran is not barred from receiving dependency and indemnity compensation if the remarriage is terminated by death, divorce, or annulment, unless the divorce or annulment was secured through fraud or collusion. This document further amends the regulations to permit the receipt of dependency and indemnity compensation by a surviving spouse who has lived with another person and held himself or herself out openly to the public as that other person's spouse, if the surviving spouse ceases living with that other person and holding himself or herself out openly to the public as that other person's spouse. This amendment is necessary to conform the regulations to a recent statutory change.

DATES: Effective Date: October 1, 1998.

FOR FURTHER INFORMATION CONTACT: Warren 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 surviving spouse of a veteran must be unmarried to receive VA benefits. The law regarding the eligibility for benefits of a surviving spouse of a veteran who remarries after the veteran's death and whose remarriage later terminates has changed several times in recent years.

Prior to January 1, 1971, remarriage of a surviving spouse of a deceased veteran was a bar to benefits unless that remarriage was void or annulled. Pub. L. 91-376 amended 38 U.S.C. 103(d) by adding subsections 103(d)(2) and (d)(3) to permit the payment or resumption of payment of benefits to a surviving spouse whose remarriage was terminated by death or divorce, or who ceased living with another person and holding himself or herself out openly to the public as that person's spouse.

The Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, deleted 38 U.S.C. 103(d)(2) and (d)(3). The effect of this change was to eliminate VA's authority, effective November 1, 1990, to reinstate entitlement to death benefits for a surviving spouse who had remarried after the veteran's death unless the marriage was void or annulled, or to reinstate entitlement to death benefits for a surviving spouse who ceased living with another person and holding himself or herself out openly to the public as that person's spouse.

Section 8207 of the Transportation Equity Act for the 21st Century, Pub. L. 105-178, amended 38 U.S.C. 1311, effective October 1, 1998, to reinstate eligibility for only dependency and indemnity compensation to a surviving spouse of a veteran whose remarriage is terminated by death, divorce, or annulment unless VA determines that the divorce or annulment was secured through fraud or collusion. Additionally, Pub. L. 105-178 reinstates eligibility for dependency and indemnity compensation to a surviving spouse of a veteran who ceases living with another person and holding himself or herself out openly to the public as that person's spouse. This document amends 38 CFR 3.55 accordingly.

This final rule reflects 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 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 number is 64.110.

List of Subjects in 38 CFR Part 3

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

Approved: April 14, 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

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. 3.55, paragraphs (a)(3) and (a)(4) are redesignated as paragraphs (a)(4) and (a)(6), respectively, and new paragraphs (a)(3) and (a)(5) are added to read as follows:

   Sec. 3.55 Reinstatement of benefits eligibility based upon terminated marital relationships.

   * * * * *

   (a) * * *

   (3) On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion.

   (Authority: 38 U.S.C. 1311(e)) * * * * *

   (5) On or after October 1, 1998, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of dependency and indemnity compensation to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse.

   (Authority: 38 U.S.C. 1311(e)) * * * * *

   [FR Doc. 99-14252Filed6-4-99; 8:45 am]

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