[Federal Register Volume 59, Number 121 (Friday, June 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15351]

[[Page Unknown]]

[Federal Register: June 24, 1994]



38 CFR Part 3

RIN 2900-AG53


Continuous Cohabitation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: The Department of Veterans Affairs (VA) has amended its 
adjudication regulations concerning continuous cohabitation in order to 
establish entitlement to death benefits as the surviving spouse of a 
deceased veteran. This amendment is necessary because the United States 
Court of Veterans Appeals (the Court) invalidated a portion of the 
regulations as exceeding the regulation-prescribing authority of the 
Secretary of Veterans Affairs. The intended effect of this amendment is 
to bring the regulations into conformance with the Court decision.

EFFECTIVE DATE: This amendment is effective May 13, 1993, the date that 
the Court rendered the decision.

Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 233-3005.

SUPPLEMENTARY INFORMATION: 38 U.S.C. 101(3) requires that in order to 
establish entitlement to death benefits as a ``surviving spouse'' of a 
veteran, the spouse must have lived with the veteran continuously from 
the date of marriage to the date of the veteran's death, except where 
there was a separation which was due to the misconduct of, or procured 
by, the veteran without the fault of the spouse. VA implemented this 
statutory provision at 38 CFR 3.50(b)(1) utilizing language identical 
to that of the statute.
    The Secretary has also prescribed at 38 CFR 3.53(a) that the 
requirement of 38 U.S.C. 101(3) concerning continuous cohabitation from 
the date of marriage to the date of death of the veteran will be 
considered as having been met when the evidence shows there was ``no 
separation due to the fault of the surviving spouse.'' In Gregory v. 
Brown, U.S. Vet. App. No. 91-912, the Court noted the inconsistency 
between 38 U.S.C. 101(3) and Sec. 3.53(a) and invalidated that portion 
of Sec. 3.53(a) that it found inconsistent with the governing statute. 
The Court found that 38 U.S.C. 101(3) establishes a two-part test to 
determine whether a spouse will be deemed to have continuously 
cohabited with the veteran when there has been a separation: (1) the 
spouse must be free of fault at the time of the separation, and (2) the 
separation must be due to the misconduct of, or procured by, the 
veteran. The Court held that given the plain meaning of the statute, 
the language in the first sentence of Sec. 3.53(a) which requires that 
the separation not be due to the fault of the surviving spouse, in 
essence eliminates the second part of the test and is therefore 
unlawful because it exceeds the authority of the Secretary provided by 
38 U.S.C. 501(a). We have amended Sec. 3.53(a) to remove that 
inconsistency effective May 13, 1993, the date of the Court's decision.
    VA is issuing a final rule to implement the decision of the Court 
in Gregory v. Brown. Because this amendment simply deletes the 
invalidated portion of a regulation and makes the regulatory language 
track the words of the statute, publication as a proposal for public 
notice and comment is unnecessary.
    Since a notice of proposed rulemaking is unnecessary and will not 
be published, this amendment is not a ``rule'' as defined in and made 
subject to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601(2). In 
any case, this regulatory amendment will not have a significant 
economic impact on a substantial number of small entities as they are 
defined in the RFA, 5 U.S.C. 601-612. This amendment will not directly 
affect any small entity.
    The Catalog of Federal Domestic Assistance program numbers are 
64.104 and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Handicapped, Health 
care, Pensions, Veterans.

    Approved January 13, 1994.
Jesse Brown,
Secretary of Veterans Affairs.

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


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

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

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

Sec. 3.53  [Amended]

    2. In Sec. 3.53(a), in the first sentence, remove the words ``there 
was no separation due to'' and insert, in their place, the words ``that 
any separation was due to the misconduct of, or procured by, the 
veteran without.''

[FR Doc. 94-15351 Filed 6-23-94; 8:45 am]