[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29893]


[[Page Unknown]]

[Federal Register: December 6, 1994]


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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3

RIN 2900-AG74

 

Dependents' Educational Assistance; Certification

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations concerning eligibility for Dependents' 
Educational Assistance (DEA) in cases where it has been established 
that a veteran has a permanent and total service-connected disability. 
This action conforms the regulations to a decision of the Court of 
Veterans Appeals which held that entitlement to DEA may be established 
in such cases where the disabilities are of paired organs or 
extremities that are treated as service-connected under 38 U.S.C. 1160. 
Section 1160 provides that the combination of service-connected 
disability of one organ or extremity and nonservice-connected 
disability of the respective paired organ or extremity is treated as if 
the combination of disabilities is the result of service-connected 
disability.

EFFECTIVE DATE: This amendment is effective December 6, 1994.

FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW., Washington, DC, telephone 
(202) 273-7210.

SUPPLEMENTARY INFORMATION: The Survivors' and Dependents' Educational 
Assistance (DEA) Program, established under 38 U.S.C. Chapter 35, 
authorizes monetary educational benefits to a qualifying spouse or 
child, or surviving spouse or child, of a veteran whose death or 
permanent and total disability was due to military service.
    38 CFR 3.807 provides that a spouse or child of a veteran has basic 
eligibility for Chapter 35 benefits if the veteran has a permanent 
total service-connected disability. The surviving spouse or child of a 
deceased veteran has basic eligibility for Chapter 35 benefits if a 
permanent total service-connected disability was in existence at the 
date of the veteran's death or the veteran died of a service-connected 
disability.
    38 U.S.C. 1160 provides that where a veteran has suffered service-
connected loss of use of an eye, kidney, ear, hand, foot, or lung and 
nonservice-connected loss of use of the paired eye, kidney, ear, hand, 
foot, or lung, the veteran shall be paid compensation as if the 
combination of disabilities were the result of service-connected 
disability. 38 CFR 3.383 is the corresponding regulation.
    In Precedent Opinion 75-90 dated July 18, 1990, the VA General 
Counsel held that Chapter 35 eligibility is not established where a 
disability of paired organs treated as if service-connected under 38 
U.S.C. 1160 for purposes of disability compensation is evaluated as 
permanently and totally disabling. The General Counsel reasoned that 
the threshold criterion for DEA eligibility is total service-connected 
disability and stated that this criterion is not satisfied where 
permanent and total disability is based on the ``as if service-
connected'' status established under 38 U.S.C. 1160.
    In a recent decision (Kimberlin v. Brown, No. 91-1972), however, 
the United States Court of Veterans Appeals held that Chapter 35 
entitlement was established where the veteran was entitled to 
compensation for a total disability, permanent in nature, regardless of 
whether entitlement was based on loss of use of paired organs treated 
as if service-connected under 38 U.S.C. 1160. The Court's opinion 
overrules General Counsel Precedent Opinion 75-90 insofar as it relates 
to Chapter 35 eligibility.
    Currently the regulation does not specifically address whether 
Chapter 35 eligibility may be established based on a combination of 
disabilities treated as if service-connected under 38 CFR 3.383(a). We 
are amending 38 CFR 3.807 to reflect the Court's determination that 
such an evaluation may be the basis for Chapter 35 eligibility.

Administrative Procedure Act

    This final rule constitutes an interpretative rule. Accordingly, 
pursuant to 5 U.S.C. 553, there is a basis for dispensing with prior 
notice and comment on this final rule and dispensing with a 30-day 
delay of its effective date.

Regulatory Flexibility Act

    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 
et seq.).
    There are no affected Catalog of Federal Domestic Assistance 
program numbers.

List of Subjects in 38 CFR Part 3

    Administrative practices and procedure, Claims, Individuals with 
disabilities, Health care, Pensions, Veterans.
Jesse Brown,
Secretary of Veterans Affairs.

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

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. Section 3.807 is amended, by adding a sentence after the heading 
of paragraph (c), and by adding an authority citation at the end of the 
section, as follows:


Sec. 3.807  Dependents' educational assistance; certification.

* * * * *
    (c) Service connection. For purpose of this section, the term 
``service-connected disability'' encompasses combinations of 
disabilities of paired organs or extremities treated as if service-
connected under the provisions of Sec. 3.383(a) of this part. * * *
* * * * *
(Authority: 38 U.S.C. 1160, 3501)

[FR Doc. 94-29893 Filed 12-5-94; 8:45 am]
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