[Federal Register Volume 71, Number 97 (Friday, May 19, 2006)]
[Rules and Regulations]
[Pages 29082-29084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4672]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM24


Remarriage of a Surviving Spouse

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final 
rule to amend its adjudication regulations regarding benefits for 
surviving spouses to reflect statutory changes that affect the 
eligibility of those surviving spouses who remarry after ages 55 and 
57. These amendments are necessary to conform the regulations to 
statutory provisions.

DATES: Effective Date: This final rule is effective May 19, 2006.
    Applicability Dates: VA will apply the amendments in this final 
rule to 38 CFR 3.55 in accordance with the effective dates specified by 
Congress for the statutory changes reflected in this rule. Accordingly, 
the amendment that adds 38 CFR 3.55(a)(9) will apply to CHAMPVA 
eligibility for periods on or after February 4, 2003. The amendment 
that adds 38 CFR 3.55(a)(10) will apply to the benefits specified in 
that paragraph for periods on or after January 1, 2004. See the 
SUPPLEMENTARY INFORMATION section for additional information pertaining 
to dates of remarriage.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, 
Compensation and Pension Service, Policy and Regulations Staff, 
Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, 
DC 20420, (202) 273-7211.

SUPPLEMENTARY INFORMATION: The Veterans Benefits Act of 2002, Public 
Law 107-330, and the Veterans Benefits Act of 2003, Public Law 108-183, 
amended title 38, United States Code, to provide eligibility for 
certain VA

[[Page 29083]]

benefits to surviving spouses of veterans who remarry after age 55 or 
age 57. VA is amending 38 CFR 3.55 as described in this final rule to 
reflect current statutory provisions.

The Veterans Benefits Act of 2002

    Section 101 of the Veterans Benefits Act of 2002 amended 38 U.S.C. 
103, Special provisions relating to marriages, regarding benefits for 
veterans' surviving spouses who remarry after a certain age. The 
amendment redesignated the text of former section 103(d)(2) as 
103(d)(2)(A), and added a new section 103(d)(2)(B). Section 
103(d)(2)(B) states that a surviving spouse's remarriage after age 55 
shall not bar the furnishing of CHAMPVA medical care benefits under 38 
U.S.C. 1781 to such person as the surviving spouse of the veteran. The 
effective date of the amendment is February 4, 2003, sixty days after 
the date of the enactment of the Act, December 6, 2002.
    Section 101 of the 2002 Act also provided that surviving spouses 
who remarried prior to December 6, 2002, but after attaining age 55, 
may be eligible for CHAMPVA, but only if VA received an application 
during the one-year period ending on February 4, 2003. We believe 
Congress intended also to authorize CHAMPVA benefits to surviving 
spouses who remarried during the period between the enactment date 
(December 6, 2002) and effective date (February 3, 2003) of the 2002 
Act, without regard to the one-year filing period applicable to 
remarriages before December 6, 2002. However, the effective date of the 
award of benefits for these surviving spouses may not be earlier than 
the effective date of the change in the law, February 4, 2003.

The Veterans Benefits Act of 2003

    A technical correction in section 101 of the Veterans Benefits Act 
of 2003 revised section 101 of the 2002 Act to state that VA must 
receive the surviving spouse's application for CHAMPVA before the end 
of the one-year period beginning on December 16, 2003, the date of 
enactment of the Veterans Benefits Act of 2003. The 2002 Act, as 
amended, thus allows surviving spouses who remarried after age 55 and 
before December 6, 2002, to apply for CHAMPVA benefits provided VA 
received an application for benefits before December 16, 2004 (the end 
of the one-year period beginning on the date of the enactment of the 
Veterans Benefit Act of 2003).
    Section 101 of the 2003 Act also amended 38 U.S.C. 103(d)(2)(B) 
concerning eligibility requirements for certain survivor's benefits for 
remarried surviving spouses. This amendment preserves potential 
eligibility for the following benefits for surviving spouses who 
remarry after age 57: dependency and indemnity compensation under 38 
U.S.C. 1311; CHAMPVA under 38 U.S.C. 1781; educational assistance under 
chapter 35 of title 38, United States Code; and housing loans under 
chapter 37 of title 38, United States Code. Section 101 of the 2003 Act 
additionally amended 38 U.S.C. 1311 consistent with the amendment to 
section 103. This amendment does not affect the provision of CHAMPVA 
benefits under the 2002 Act to surviving spouses who remarry after age 
55.
    Other provisions in section 101 of the 2003 Act establish January 
1, 2004, as the effective date for that section. Thus, no benefits may 
be paid to a surviving spouse based on the amendments for any period 
before January 1, 2004. Also, surviving spouses who remarried after age 
57 but before December 16, 2003, may be eligible for the benefits, but 
only if VA received an application before December 16, 2004. The 
amendments also apply to surviving spouses who remarried after age 57 
and during the period December 16, 2003, through December 31, 2003, 
without regard to the filing deadline applicable to earlier 
remarriages. However, the effective date of the award of benefits for 
these surviving spouses may not be earlier than the effective date of 
the change in the law, January 1, 2004.
    VA's regulation regarding the effect of remarriage upon a surviving 
spouse's eligibility for benefits is 38 CFR 3.55, Reinstatement of 
benefits eligibility based upon terminated marital relationships. This 
final rule adds new Sec.  3.55(a)(9) to reflect the amendments to 38 
U.S.C. 103 in section 101 of the 2002 Act, which will include the 
application criteria from that Act, as amended by the technical 
correction in section 101(f) of the 2003 Act. This final rule also adds 
new Sec.  3.55(a)(10) to reflect the amendments to 38 U.S.C. 103 in 
section 101 of the 2003 Act, and the application criteria from that 
Act.
    Finally, this rule revises the statutory citations in Sec.  
3.55(a)(4) and (a)(7) to reflect the redesignation of 38 U.S.C. 1713 as 
38 U.S.C. 1781 in Public Law 107-135, effective January 23, 2002.

Administrative Procedure Act

    Changes made by this final rule restate current statutory 
provisions, and make nonsubstantive technical changes. Accordingly, 
there is a basis for dispensing with the prior notice and comment and 
delayed effective date provisions of 5 U.S.C. 553.

Paperwork Reduction Act

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. Only VA beneficiaries could be directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Order 
classifies a rule as a significant regulatory action requiring review 
by the Office of Management and Budget if it meets any one of a number 
of specified conditions, including: having an annual effect on the 
economy of $100 million or more, creating a serious inconsistency or 
interfering with an action of another agency, materially altering the 
budgetary impact of entitlements or the rights of entitlement 
recipients, or raising novel legal or policy issues. VA has examined 
the economic, legal, and policy implications of this final rule and has 
concluded that it is not a significant regulatory action under 
Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more (adjusted annually for 
inflation) in any given year. This rule would have no such effect on 
State, local, and tribal governments, or the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers for this 
proposal are 64.100, Automobiles and Adaptive Equipment for Certain 
Disabled Veterans and Members of the

[[Page 29084]]

Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, 
Compensation for Service-Connected Deaths for Veterans' Dependents; 
64.103, Life Insurance for Veterans; 64.104, Pension for Non-Service-
Connected Disability for Veterans; 64.105, Pension to Veterans 
Surviving Spouses, and Children; 64.106, Specially Adapted Housing for 
Disabled Veterans; 64.109, Veterans Compensation for Service-Connected 
Disability; 64.110, Veterans Dependency and Indemnity Compensation for 
Service-Connected Death; 64.114, Veterans Housing-Guaranteed and 
Insured Loans; 64.115, Veterans Information and Assistance; 64.116, 
Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and 
Dependents Educational Assistance; 64.118, Veterans Housing-Direct 
Loans for Certain Disabled Veterans; 64.119, Veterans Housing-
Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational 
Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, 
Vocational and Educational Counseling for Servicemembers and Veterans; 
64.126, Native American Veteran Direct Loan Program; 64.127, Monthly 
Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 
64.128, Vocational Training and Rehabilitation for Vietnam Veterans' 
Children with Spina Bifida or Other Covered Birth Defects.

List of Subjects in 38 CFR Part 3

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

    Approved: March 1, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, VA amends 38 CFR part 3 as 
follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

0
2. Section 3.55 is amended by:
0
a. In paragraph (a)(4), removing ``38 U.S.C. 1713'' and adding, in its 
place, ``38 U.S.C. 1781''.
0
b. In paragraph (a)(7), removing ``38 U.S.C. 1713'' and adding, in its 
place, ``38 U.S.C. 1781''.
0
c. Adding paragraphs (a)(9) and (a)(10).
    The additions read as follows:


Sec.  3.55  Reinstatement of benefits eligibility based upon terminated 
marital relationships.

    (a) * * *
    (9) Benefits under 38 U.S.C. 1781 for a surviving spouse who 
remarries after age 55. (i) On or after February 4, 2003, the 
remarriage of a surviving spouse after age 55 shall not bar the 
furnishing of benefits relating to medical care for survivors and 
dependents under 38 U.S.C. 1781, subject to the limitation in paragraph 
(a)(9)(ii) of this section.
    (ii) A surviving spouse who remarried after the age of 55, but 
before December 6, 2002, may be eligible for benefits relating to 
medical care for survivors and dependents under 38 U.S.C. 1781 pursuant 
to paragraph (a)(9)(i) only if the application for such benefits was 
received by VA before December 16, 2004.

(Authority: 38 U.S.C. 103).

    (10) Benefits for a surviving spouse who remarries after age 57. 
(i) On or after January 1, 2004, the remarriage of a surviving spouse 
after the age of 57 shall not bar the furnishing of benefits relating 
to dependency and indemnity compensation under 38 U.S.C. 1311, medical 
care for survivors and dependents under 38 U.S.C. 1781, educational 
assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. 
chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this 
section.
    (ii) A surviving spouse who remarried after the age of 57, but 
before December 16, 2003, may be eligible for dependency and indemnity 
compensation under 38 U.S.C. 1311, medical care for survivors and 
dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. 
chapter 35, or housing loans under 38 U.S.C. chapter 37 pursuant to 
paragraph (a)(10)(i) only if the application for such benefits was 
received by VA before December 16, 2004.

(Authority: 38 U.S.C. 103).

[FR Doc. 06-4672 Filed 5-18-06; 8:45 am]
BILLING CODE 8320-01-P