[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78368-78369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22339]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM28


Accrued Benefits

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its 
adjudication regulation regarding accrued benefits. The amendments are 
the result of changes in statute and are intended to clarify existing 
regulatory provisions. This document adopts as final rule, without 
change, the proposed rule published in the Federal Register on June 29, 
2006.

DATES: Effective Date: January 29, 2007.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, Policy 
and Regulations Staff, Compensation and Pension Service, Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Avenue, NW., Washington, DC 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on June 29, 2006, (71 FR 37027), VA proposed to amend its 
regulations regarding accrued benefits to clarify existing regulatory 
provisions and to ensure consistency with section 104 of the Veterans 
Benefits Act of 2003, Public Law 108-183, which amended 38 U.S.C. 5121, 
with respect to payment of certain accrued benefits upon the death of a 
beneficiary.
    The public comment period ended on August 28, 2006, and VA received 
no comments. Based on the rationale set forth in the proposed rule, we 
are adopting the provisions of the proposed rule as a final rule 
without change.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    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, 5 U.S.C. 601-
612. This final rule would not affect any small entities. Therefore, 
pursuant to 5 U.S.C. 605(b), this final rule 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 Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined to be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that may raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.

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 the 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 year. This final rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.102, Compensation for Service-Connected 
Deaths for Veterans' Dependents, 64.104, Pension for Non-Service-
Connected Disability for Veterans, 64.105, Pension to Veterans 
Surviving Spouses, and Children, 64.109, Veterans Compensation for 
Service-Connected Disability, and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits,

[[Page 78369]]

Health care, Pensions, Radioactive materials, Veterans, Vietnam.

     Approved: December 7, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

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For the reasons set out in the preamble, VA amends 38 CFR part 3 
(subpart A) as follows:

PART 3--ADJUDICATION

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

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

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


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2. Amend Sec.  3.1000 as follows:
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a. In paragraph (a) introductory text, remove ``at his death'' and add, 
in its place, ``at his or her death''; remove ``decisions, or'' and 
add, in its place, ``decisions or''; and remove ``for a period not to 
exceed 2 years prior to the last date of entitlement as provided in 
Sec.  3.500(g)''.
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b. Redesignate paragraph (a)(4) as paragraph (a)(5).
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c. Add a new paragraph (a)(4).
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d. In paragraph (d)(4), add ``, in support of a claim for VA benefits 
pending on the date of death'' immediately following ``before the date 
of death''.
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e. Add paragraph (d)(5).
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f. Add paragraph (i).
    The additions read as follows:


Sec.  3.1000  Entitlement under 38 U.S.C. 5121 to benefits due and 
unpaid upon death of a beneficiary.

    (a) * * *
    (4) Upon the death of a child claiming benefits under chapter 18 of 
this title, to the surviving parents.
* * * * *
    (d) * * *
    (5) Claim for VA benefits pending on the date of death means a 
claim filed with VA that had not been finally adjudicated by VA on or 
before the date of death. Such a claim includes a deceased 
beneficiary's claim to reopen a finally disallowed claim based upon new 
and material evidence or a deceased beneficiary's claim of clear and 
unmistakable error in a prior rating or decision. Any new and material 
evidence must have been in VA's possession on or before the date of the 
beneficiary's death.
* * * * *
    (i) Active service pay. Benefits awarded under this section do not 
include compensation or pension benefits for any period for which the 
veteran received active service pay.

(Authority: 38 U.S.C. 5304(c).)

 [FR Doc. E6-22339 Filed 12-28-06; 8:45 am]
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