[Federal Register Volume 62, Number 25 (Thursday, February 6, 1997)]
[Rules and Regulations]
[Pages 5528-5530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2903]


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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3

RIN 2900-AI36


Spouse and Surviving Spouse

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
adjudication regulations to replace gender-specific language with 
gender-neutral language. The amendments are necessary to conform the 
adjudication regulations with the VA policy that all of its 
publications will be stated in a manner that does not seem to preclude 
benefits for female veterans, dependents or beneficiaries.

EFFECTIVE DATE: This amendment is effective February 6, 1997.

FOR FURTHER INFORMATION CONTACT:Paul Trowbridge, Consultant, 
Compensation and Pension Service (213), Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, 
Washington, DC 20420, telephone (202) 273-7218.

SUPPLEMENTARY INFORMATION: It is our policy that in any VA publication 
and in any communications, words and statements denoting gender shall 
avoid any appearance of seeming to preclude benefits for female 
veterans, dependents, or beneficiaries. We believe that the best way to 
do so is to use gender-neutral terms such as ``spouse'' or ``surviving 
spouse'' rather than gender-specific terms such as ``husband,'' 
``wife,'' ``widow,'' or ``widower.''
    This document deletes references throughout 38 CFR part 3 to 
``wife,'' ``husband,'' ``widow,'' or ``widower,'' and replaces them 
with the terms ``spouse'' and ``surviving spouse.'' In 38 CFR 
3.205(a)(6), ``held themselves out as married'' has been substituted 
for ``held themselves out as husband and wife.'' 38 CFR 3.50 is revised 
to provide a new definition of ``spouse'' and ``surviving spouse'' to 
reflect statutory requirements. Because of this change, it is no longer 
necessary to define ``wife'' and ``widow.'' These terms are therefore 
removed. 38 CFR 3.51 previously provided that the term ``wife'' 
includes the husband of a female veteran and the term ``widow'' 
includes the widower of a female veteran. Because we have substituted 
gender-neutral terms such as ``spouse'' and ``surviving spouse'' for 
terms such as ``wife,'' ``husband,'' ``widow,'' or ``widower'' 
throughout the adjudication regulations, 38 CFR 3.51 is no longer 
necessary and we have removed it.
    Since these amendments make no substantive change to the 
regulations, the Secretary finds that notice and public procedure 
thereon are unnecessary. Accordingly, these amendments are promulgated 
without

[[Page 5529]]

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

List of Subjects in 38 CFR Part 3

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

    Approved: January 27, 1997.
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 otherwised noted.

    2. Section 3.50 is revised to read as follows:


Sec. 3.50  Spouse and surviving spouse.

    (a) Spouse. ``Spouse'' means a person of the opposite sex whose 
marriage to the veteran meets the requirements of Sec. 3.1(j).
    (b) Surviving spouse. Except as provided in Sec. 3.52, ``surviving 
spouse'' means a person of the opposite sex whose marriage to the 
veteran meets the requirements of Sec. 3.1(j) and who was the spouse of 
the veteran at the time of the veteran's death and:
    (1) Who 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; and
    (2) Except as provided in Sec. 3.55, has not remarried or has not 
since the death of the veteran and after September 19, 1962, lived with 
another person of the opposite sex and held himself or herself out 
openly to the public to be the spouse of such other person.


Sec. 3.51  [Removed]

    3. Section 3.51 is removed.


Sec. 3.106  [Amended]

    4. In Sec. 3.106, paragraph (e) is amended by removing ``widow'' 
and adding, in its place, ``surviving spouse''.


Sec. 3.205  [Amended]

    5. In Sec. 3.205, the last sentence of paragraph (a)(6) is amended 
by removing ``husband and wife'' and adding, in their place, 
``married''.


Sec. 3.214  [Amended]

    6. In Sec. 3.214, the section heading is amended by removing 
``widows'' and adding, in its place, ``surviving spouses''.


Sec. 3.252  [Amended]

    7. In Sec. 3.252, paragraph (b) is amended by removing ``widow or 
widower'' each time they appear and adding, in their place, ``surviving 
spouse''; and paragraph (e) is revised to read as follows:


Sec. 3.252  Annual income; pension; Mexican border period and later war 
periods.

* * * * *
    (e) Surviving spouse with a child--(1) Child. The term ``child'' 
means a child as defined in Sec. 3.57. Where a veteran's child is born 
after the veteran dies, the surviving spouse will not be considered a 
surviving spouse with a child prior to the child's date of birth.
    (2) Veteran's child not in surviving spouse's custody. Where the 
veteran was survived by a surviving spouse and by a child, the income 
increments for a surviving spouse and child apply even though the child 
is not the child of the surviving spouse and not in his or her custody.
    (3) Income of child. The separate income received by a child or 
children, regardless of custody, will not be considered in computing 
the surviving spouse's income. Where the separate income of the child 
is turned over to the surviving spouse, only so much of the money as is 
left after deducting any expenses for maintenance of the child will be 
considered the surviving spouse's income.
    (4) Alternative rate. Whenever the monthly pension rate payable to 
the surviving spouse under the formula in 38 U.S.C. 1541(c) is less 
than the rate payable for one child under section 1542 if the surviving 
spouse were not entitled, the surviving spouse will be paid the child's 
rate.
* * * * *
    8. Section 3.257 is revised to read as follows:


Sec. 3.257  Children; no surviving spouse entitled.

    Where pension is not payable to a surviving spouse because his or 
her annual income exceeds the statutory limitation or because of his or 
her net worth, payments will be made to or for the child or children as 
if there were no surviving spouse.


Sec. 3.262  [Amended]

    9. In Sec. 3.262, paragraph (k)(6) is amended by removing ``widow'' 
and adding, in its place, ``surviving spouse''.


Sec. 3.400  [Amended]

    10. In Sec. 3.400, paragraph (e)(2) is amended by removing 
``widow's or widower's'' each time they appear and adding, in their 
place, ``surviving spouse's'' and by removing ``widow or widower'' and 
adding, in their place, ``surviving spouse''.


Sec. 3.401  [Amended]

    11. In Sec. 3.401, paragraph (c), the heading is amended by 
removing ``wife (husband)'' and adding, in their place, ``spouse''.


Sec. 3.666  [Amended]

    12. In Sec. 3.666, paragraph (b)(1) is amended by removing ``widow 
or widower'' and adding, in their place, ``surviving spouse''.


Sec. 3.702  [Amended]

    13. In Sec. 3.702, paragraph (e), the heading is amended by 
removing ``Widow (widower)'' and adding, in their place, ``Surviving 
spouse''.


Sec. 3.805   [Amended]

    14. In Sec. 3.805, paragraphs (d) and (e) are amended by removing 
``widow (widower)'' each time they appear and adding, in their place, 
``surviving spouse''; and paragraph (f) is amended by removing 
``herself (himself)''.


Sec. 3.857  [Amended]

    15. In Sec. 3.857, the heading and text are amended by removing 
``widow or widower'' each time they appear and adding, in their place, 
``surviving spouse''.


Sec. 3.1000   [Amended]

    16. In Sec. 3.1000, paragraph (a)(2) is amended by removing ``widow 
or remarried widow'' and adding, in their place, ``surviving spouse or 
remarried surviving spouse''; paragraph (b)(3) is amended by removing 
``widow's'' and adding, in its place, ``surviving spouse's''; the 
introductory text of paragraph (c) is amended by removing ``widow'' and 
adding, in its place, ``surviving spouse''; paragraph (d)(1) is amended 
by removing ``widow or

[[Page 5530]]

widower'' and adding, in their place, ``surviving spouse''; and 
paragraph (f) is amended by removing ``widow or widower'' and adding, 
in their place, ``surviving spouse'' and by removing ``wife or 
husband'' and adding, in their place, ``spouse''.

[FR Doc. 97-2903 Filed 2-5-97; 8:45 am]
BILLING CODE 8320-01-P