[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30391-30392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14141]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ64


Surviving Spouse's Benefit for Month of Veteran's Death

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulation governing payment of death benefits to an 
eligible surviving spouse for the month of the veteran's death. This 
amendment allows payment of such benefits at the rate that would have 
been paid to the veteran had he or she not died where the monthly 
amount of dependency and indemnity compensation or pension payable to 
the veteran's spouse is equal to the amount of benefits the veteran 
would have otherwise received for the month of his or her death. This 
amendment is required by statute.

DATES: Effective Date: June 8, 1999.

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

SUPPLEMENTARY INFORMATION: Section 5111(a) of title 38, United States 
Code, prohibits payment of compensation, pension, or dependency and 
indemnity compensation (DIC) benefits for any period before the first 
day of the month following the month in which an award or increased 
award of benefits was effective. In effect, VA generally may not pay 
first-time or increased benefits for any part of the first calendar 
month of entitlement. (See also 38 CFR 3.31).
    Section 5111(c) provides certain exceptions to the general 
prohibition in section 5111(a), including the following:

    (Section 5111) shall apply to payments made pursuant to section 
5310 of this title only if the monthly amount of [DIC] or pension 
payable to the surviving spouse is greater than the amount of 
compensation or pension the veteran would have received, but for 
such veteran's death, for the month in which such veteran's death 
occurred.

38 U.S.C. 5111(c)(1).
    Section 5310 of title 38, United States Code, provides authority 
under which VA may pay to a surviving spouse the amount of benefits 
which the veteran would otherwise have received for the month of his or 
her death. (When a veteran receiving compensation or pension dies, VA 
terminates his or her benefit payments effective the last day

[[Page 30392]]

of the month prior to the month of death. See 38 U.S.C. 5112(b)(1).) 
Under section 5310(a), if a surviving spouse is entitled to certain 
death benefits for the month of the veteran's death, the amount of 
benefits payable for that month ``shall be not less'' than the amount 
of compensation or pension the veteran would have received if he or she 
had not died.
    VA has implemented the provisions of section 5111(c)(1) at 38 CFR 
3.20(b) and 3.31(c)(1). In a recent opinion (VAOPGCPREC 10-98), VA's 
General Counsel pointed out that language in 38 CFR 3.20(b) is 
inconsistent with 38 U.S.C. 5111(c)(1). Section 5111(c)(1) provides, 
with respect to payments under section 5310, that payment for the first 
calendar month of entitlement is prohibited only if the amount of DIC 
or death pension payable exceeds the amount of compensation or pension 
that would have been payable to the veteran. Section 3.20(b), however, 
provides that payment for the first calendar month is permitted only if 
the amount of compensation or pension that would have been payable to 
the veteran exceeds the amount of DIC or death pension payable. These 
two provisions give different results if the amount of DIC or death 
pension payable equals the amount of compensation or pension that would 
have been payable to the veteran. In this situation, the statute would 
allow payment for the month of death, but the regulation would not. To 
that extent, 38 CFR 3.20(b) is inconsistent with section 5111(c)(1) of 
the statute.
    Accordingly, we are amending Sec. 3.20(b) to make it consistent 
with the statute. It now provides that a surviving spouse may receive 
payment for the month of the veteran's death if the veteran's rate of 
benefits is equal to or greater than the rate of death pension or DIC 
payable to the surviving spouse.
    This final rule simply corrects VA regulations to reflect statutory 
requirements. Accordingly, there is a basis for dispensing with prior 
notice and comment and delayed effective date provisions of 5 U.S.C. 
552 and 553.
    Because no notice of proposed rule making 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 
64.105 and 64.110.

List of Subjects in 38 CFR Part 3

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

    Approved: May 21, 1999.
Togo D. West, Jr.,
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.


Sec. 3.20  [Amended]

    2. In Sec. 3.20, the first sentence of paragraph (b) is amended by 
adding ``equal to or'' immediately after ``if such rate is''.

[FR Doc. 99-14141 Filed 6-7-99; 8:45 am]
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