[Federal Register Volume 61, Number 249 (Thursday, December 26, 1996)]
[Rules and Regulations]
[Pages 67949-67950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32726]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI43


Adjudication Regulations; Miscellaneous

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends adjudication regulations by removing 
obsolete sections, updating authority citations, and making other 
nonsubstantive changes.

EFFECTIVE DATE: December 26, 1996.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
(202) 273-7230.

SUPPLEMENTARY INFORMATION: 38 CFR 3.107 contains requirements for 
processing benefit awards where claims have not been filed by or on 
behalf of all dependents who may be entitled to monetary benefits. The 
heading of Sec. 3.107, ``Awards where all dependents do not apply'', 
does not accurately reflect its content and we are revising it to read 
``Awards where not all dependents apply''.
    38 CFR 3.315(c)(1) (i) and (ii) require basic eligibility 
determinations under certain circumstances when veterans apply for 
education benefits under 38 U.S.C. Chapter 34 and Chapter 32, 
respectively. Since 38 U.S.C. Chapter 34 expired on December 31, 1989, 
Sec. 3.315(c)(1)(i) is obsolete and we have removed it. The last date 
that a veteran seeking benefits under 38 U.S.C. Chapter 32 could have 
entered active duty and not have the two-year service requirement found 
in 38 U.S.C. 5303A apply was October 16, 1981. If such a veteran also 
did not meet the 181-day service requirement, that veteran would have 
been released from active duty before April 16, 1982, and, if found 
eligible for benefits under 38 U.S.C. Chapter 32, would have had the 
period of eligibility expire ten years from the date of release from 
active duty, or no later than April 16, 1992. If such a veteran made a 
current application for chapter 32 educational benefits, there would be 
no need for rating board referral in order to adjudicate that claim. 
Section 3.315(c)(1)(ii) is therefore obsolete and we have removed it.
    The references in Sec. 3.315(c)(4) to Post-Korean and Vietnam era 
service were needed to administer Sec. 3.315(c)(1)(i). Since 
Sec. 3.315(c)(1)(i) has been removed,

[[Page 67950]]

there is no longer any need in Sec. 3.315(c)(4) to refer to service 
between January 31, 1955, and August 5, 1964, and during the Vietnam 
era. We have revised Sec. 3.315(c)(4) accordingly. As there is no 
longer any need to refer to 38 U.S.C. 3452(a) in the authority citation 
following Sec. 3.315(c), we have removed that reference. Also, that 
authority citation contains an incorrect reference to ``10 U.S.C. 
2133(b)''. The correct reference is ``10 U.S.C. 16133(b)'', and we have 
revised the reference accordingly. Sections 3.315(c)(3)(i) and 
3.1000(g) contain incorrect references to ``10 U.S.C. Chapter 106''. 
The correct reference is ``10 U.S.C. Chapter 1606'', and we have 
revised the references accordingly.
    38 CFR 3.400(d) is being deleted because it merely restates a 
statute and its provisions have become obsolete.
    When the Social Security Administration (SSA) has notified the 
Department of Veterans Affairs (VA) that payments to any individual 
have been authorized pursuant to section 217(b)(2) of the Social 
Security Act (42 U.S.C. 417(b)(2)), 38 CFR 3.709 requires VA to notify 
SSA of any determination that death pension, compensation, or 
dependency and indemnity compensation is payable to any dependent of 
the veteran. Section 5117 of Pub. L. 101-508 revised 42 U.S.C. 
417(b)(2) so that it applied only to individuals applying for SSA 
benefits before the end of the 18-month period after the month in which 
Pub. L. 101-508 was enacted. Since that 18-month period expired on June 
1, 1992, 38 CFR 3.709 is obsolete and we have removed it.
    38 CFR 3.712(a) concerns the election of improved pension by 
Spanish-American War veterans. However, there are no Spanish-American 
War veterans currently receiving monetary benefits from VA. 
Consequently, Sec. 3.712(a) is no longer required and is removed. Since 
the remainder of Sec. 3.712 concerns surviving spouses only, we have 
revised the heading to read ``Improved pension elections; surviving 
spouses of Spanish-American War veterans'', and redesignated paragraphs 
(b)(1) and (b)(2) as paragraphs (a) and (b), respectively.
    Pub. L. 95-588 completely revised the statutory framework for VA 
pension benefits effective January 1, 1979. 38 CFR 3.961 states that 
pension claims pending on December 31, 1978, will be adjudicated under 
title 38 U.S.C. as in effect on December 31, 1978, and that pension 
claims filed after December 31, 1978, will be adjudicated under title 
38 U.S.C. as in effect on January 1, 1979 or thereafter. 38 CFR 3.962 
states that claims filed after December 31, 1978, will generally be 
adjudicated under title 38 U.S.C. as in effect on December 31, 1978, if 
entitlement is based on permanent and total disability that existed or 
death that occurred prior to January 1, 1979.
    Since such claims have long since been adjudicated, Secs. 3.961 and 
3.962 are obsolete and we have removed them.
    This final rule makes nonsubstantive changes. Accordingly, this 
final rule is promulgated without regard to the notice-and-comment and 
effective-date provisions of 5 U.S.C. 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 final rule only makes nonsubstantive changes.

    The Catalog of Federal Domestic Assistance program numbers are 
64.104, 64.105, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

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

    Approved: November 21, 1996.
Jesse Brown,
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. 3.107, the section heading is revised to read as 
follows:


Sec. 3.107   Awards where not all dependents apply.

* * * * *


Sec. 3.315   [Amended]

    3. In Sec. 3.315, remove paragraphs (c)(1)(i) and (c)(1)(ii) are 
removed, and paragraphs (c)(1)(iii) and (c)(1)(iv) are redesignated as 
paragraphs (c)(1)(i) and (c)(1)(ii), respectively. Paragraph (c)(3)(i) 
is amended by removing ``10 U.S.C. chapter 106'' and adding, in its 
place, ``10 U.S.C. Chapter 1606''; and paragraph (c)(4) is amended by 
removing ``after January 31, 1955, and before August 5, 1964, or after 
May 7, 1975, and Sec. 3.306(b) based on service rendered during the 
Vietnam era'' and adding, in its place, ``after May 7, 1975''; and the 
authority citation following paragraph (c)(4) is revised to read as 
follows:


Sec. 3.315   Basic eligibility determinations; dependents, loans, 
education.

* * * * *
(Authority: 38 U.S.C. 3011(a)(1)(A)(ii), 3012(b)(1), 3202(1)(A), 10 
U.S.C. 16133(b))


Sec. 3.400   [Amended]

    4. In Sec. 3.400 paragraph(d) is removed.


Sec. 3.709   [Removed]

    5. Section 3.709 is removed.


Sec. 3.712   [Amended]

    6. In Sec. 3.712, paragraph (a) and the heading for paragraph (b) 
are removed, paragraphs (b)(1) and (b)(2) are redesignated as 
paragraphs (a) and (b), respectively; the section heading is revised to 
read as follows:


Sec. 3.712   Improved pension elections; surviving spouses of Spanish-
American War veterans.

* * * * *


Sec. 3.961   [Removed]

    7. Section 3.961 is removed.


Sec. 3.962   [Removed]

    8. Section 3.962 is removed.


Sec. 3.1000   [Amended]

    9. In Sec. 3.1000, paragraph(g) is amended by removing ``10 U.S.C. 
chapter 106'', and adding, in its place, ``10 U.S.C. chapter 1606''.

[FR Doc. 96-32726 Filed 12-24-96; 8:45 am]
BILLING CODE 8320-01-P