[Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
[Rules and Regulations]
[Pages 20642-20643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10315]



  
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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH37


Time Limit for Filing a Claim for REPS Benefits

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 the special allowance known as REPS 
(Restored Entitlement Program for Survivors). This amendment is 
necessary to conform the regulations to a decision of the United States 
Court of Appeals for the Federal Circuit which upheld a decision of the 
United States Court of Veterans Appeals invalidating the VA regulation 
establishing a time limit for filing a claim for REPS benefits. The 
purpose of the amendment is to remove the time limit.

EFFECTIVE DATE: This amendment is effective April 27, 1995.

FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
(202) 273-7210.

SUPPLEMENTARY INFORMATION: The Omnibus Budget Reconciliation Act of 
1981 amended title 42, United States Code, to terminate or reduce 
payment of the Social Security child's insurance benefit and to 
terminate the mother's benefit at the point at which the youngest child 
reached age 16. Previously, the mother's benefit had terminated when 
the youngest child reached age 18. Section 156 of Pub. L. 97-377, which 
established a program known as the Restored Entitlement Program for 
Survivors or REPS, in effect, restored such terminated or reduced 
benefits for surviving spouses and children of veterans who died on 
active duty prior to August 13, 1981, or died as a result of service-
connected disability incurred or aggravated prior to that date.
    Under the authority granted in section 156, VA issued regulations, 
codified at 38 CFR 3.812, which implemented the statute. Paragraph (f) 
of Sec. 3.812 provided that benefits could be paid from the first day 
of the month during which the claimant first became eligible, if 
application was filed within 11 months following that month. This 
paragraph was amended on June 28, 1993, to require that the application 
be filed within 6 months of the month during which the claimant first 
became eligible in order for benefits to be payable from the first day 
of the month in which eligibility arose.
    The United States Court of Veterans Appeals struck down subsections 
(2) and (3) of 38 CFR 3.812(f), which specified the time limits for 
filing an application for REPS benefits, in the case of Cole v. 
Derwinski, 2 Vet. App. 400 (1992), aff'd, 35 F.3d 551 (Fed. Cir. 1994), 
involving a claim for the REPS mother's benefit. The court relied on 
its Cole decision in Skinner v. Brown, 4 Vet. App. 141 (1993), aff'd, 
27 F.3d 1571 (Fed. Cir. 1994), a case involving a claim for the REPS 
child's benefit.
    In affirming the Court of Veterans Appeals decision, the United 
States Court of Appeals for the Federal Circuit held that the VA 
regulation denying retroactive payment to claimants who failed to file 
a REPS claim within 6 months of the month entitlement arose was 
contrary to the plain meaning of the REPS statute, which imposes no 
time restrictions on filing, and was therefore invalid. Paragraph (f) 
of 38 CFR 3.812 is therefore amended to show that there is no time 
limit for filing a claim for REPS benefits. The only restriction on 
payment to an otherwise eligible claimant is that no payment can be 
made for any period prior to January 1, 1983, the effective date set by 
the REPS statute.
    This final rule constitutes an interpretive rule. Accordingly, it 
is made effective upon publication.
    The Secretary of Veterans Affairs certifies that this final rule 
will not have [[Page 20643]] a significant economic impact on a 
substantial number of small entities as they are defined in the 
Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This amendment will 
directly affect VA beneficiaries but will not directly affect small 
businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is 
exempt from the initial and final regulatory flexibility analyses 
requirements of sections 603 and 604.
    There are no affected Catalog of Federal Domestic Assistance 
Program numbers.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Health care, 
Individuals with disabilities, Pensions, Veterans.

    Approved: April 7, 1995.
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 3.812 is amended by revising paragraph (f) and the 
authority citation following the paragraph to read as follows:


Sec. 3.812  Special allowance payable under section 156 of Pub. L. 97-
377.

* * * * *
    (f) Retroactivity and effective dates. There is no time limit for 
filing a claim for this special allowance. Upon the filing of a claim, 
benefits shall be payable for all periods of eligibility beginning on 
or after the first day of the month in which the claimant first became 
eligible for this special allowance, except that no payment may be made 
for any period prior to January 1, 1983.

(Authority: Sec. 156, Pub. L. 97-377, 96 Stat. 1830, 1920 (1982))

[FR Doc. 95-10315 Filed 4-26-95; 8:45 am]
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