[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Rules and Regulations]
[Pages 39886-39888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17274]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AQ10


Automatic Burial Benefits for Previously Unestablished Surviving 
Spouses

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA) 
regulation governing persons who may receive VA burial benefits on 
behalf of a deceased veteran. As amended, the regulation reflects VA's 
current policy of paying an automatic burial benefit to surviving 
spouses who were not established in VA systems as a veteran's spouse at 
the time of the veteran's death. The intended effect of this amendment 
is to ensure that a veteran's surviving spouse receives burial benefits 
to which he or she is entitled at the earliest possible time.

DATES: This final rule is effective August 13, 2018.

FOR FURTHER INFORMATION CONTACT: Julieann (Jewels) Brantseg, Pension 
Analyst, Pension and Fiduciary Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, 
Washington, DC 20420, (202) 632-8863. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This final rule amends the VA regulation 
regarding persons who may receive burial benefits, paid by the Veterans 
Benefits Administration (VBA), to ensure that the regulation properly 
reflects current VBA policy. On June 6, 2014, VA published in the 
Federal Register final burial regulations that permit VBA to automate 
certain burial allowance payments, pay flat-rate burial and plot or 
interment allowances, and establish priority of payments to certain 
survivors and estate representatives. Burial Benefits, 79 FR 32653. The 
revised burial regulations became effective July 7, 2014. See 79 FR 
32653.
    Burial regulations at 38 CFR 3.1700 through 3.1713 streamlined 
VBA's burial benefits program to ensure that VBA quickly, efficiently, 
and accurately delivers benefits to survivors and other individuals who 
incur the cost of a veteran's burial and funeral. The regulations 
established rules for the automatic payment of burial allowances that 
facilitated payment to many surviving spouses at the time VA updates 
its computer system to reflect the veteran's date of death. Other 
individuals seeking reimbursement for burial expenses are paid on a 
first-to-file basis.
    On December 16, 2016, Congress enacted Public Law 114-315, Sec. 
101, which authorized VA to pay benefits under 38 U.S.C. chapters 13 
and 15 and sections 2302, 2307, and 5121 ``to a survivor of a veteran 
who has not filed a formal claim if [VA] determines that the record 
contains sufficient evidence to establish the entitlement of the 
survivor to such benefits.'' See 38 U.S.C. 5101(a)(1)(B). This new 
statutory provision essentially affirmed VA's practice of providing 
automatic burial payments to surviving spouses under the current 
regulation. This rule brings about a procedural change that would allow 
VA to provide automatic burial payments to other surviving spouses whom 
VA determines are entitled to such benefits based on the record at the 
time VA updates its computer system to reflect the veteran's death, 
which we believe is consistent with the intent of section 
5101(a)(1)(B).
    Therefore, at this time, we amend 38 CFR 3.1702, which pertains to 
persons who may receive burial benefits and the priority of payments. 
The change in this final rule reflects the intent of the original 
amendments--to expedite the payment of these small, one-time benefit 
payments to survivors who generally have an immediate need for 
supplemental financial assistance after the veteran's death.
    We amend Sec.  3.1702(a), which permits VA to make automatic burial 
benefit payments to a deceased veteran's surviving spouse when VA is 
able to determine eligibility based on evidence of record at the time 
VA updates its computer system to reflect the veteran's date of death. 
We amend paragraph (a) to specifically state that a surviving spouse 
may receive an automatic burial benefit under certain circumstances, 
whether or not previously established as a dependent spouse on the 
veteran's compensation or pension award at the time of the veteran's 
death. There are several reasons why VA systems may not reflect the 
existence of a spouse at the time of a veteran's death even though a 
spouse does, in fact, exist. This could occur if a veteran was 
receiving disability compensation but was rated less than 30-percent 
disabled under the rating schedule. Such veterans with a service-
connected disability rating of less than 30 percent are not entitled to 
additional compensation for spouses. See 38 U.S.C. 1115. It could also 
occur if a veteran has never claimed his or her spouse as a dependent. 
In addition, VA systems could show a spouse who is not the current 
spouse. This could occur if

[[Page 39887]]

VA was never notified that the veteran's dependency status had changed. 
The amended regulation clarifies that VBA may pay the automatic burial 
benefit to an eligible surviving spouse when, at the time VA updates 
its computer system to reflect the veteran's date of death, VA knows of 
or is informed of the existence of the surviving spouse, can establish 
the individual's dependent status as the veteran's surviving spouse in 
accordance with Sec.  3.204 (when applicable), and is able to determine 
burial benefits eligibility based on evidence of record at the time VA 
updates its computer system to reflect the veteran's date of death.
    At this time, VA systems only permit automatic payments to 
surviving spouses. In the future, VA may consider making automatic 
payments to other persons.

Administrative Procedure Act

    This rule reflects VA's current practice and effectuates a 
procedural change to VA's final burial regulations published on June 6, 
2014, to establish a uniform process for providing automatic burial 
payments to all surviving spouses. The lack of documentation of a 
dependent spouse in VA's system at the time of the veteran's death 
should not impose additional procedural requirements on those 
individuals when applying for burial benefits established under the 
regulations.
    This rule does not make any substantive policy change or impose new 
rights, duties, or obligations on affected individuals but simply 
reflects VA's existing policy and effectuates a procedural change to 
VA's final burial regulations published on June 6, 2014, to ensure 
uniform procedures for eligible surviving spouses to receive burial 
allowance payments faster. In other words, this rule does not expand 
the class of individuals eligible for burial allowance payments but 
merely ensures faster payment of the burial allowance to surviving 
spouses who otherwise would have to submit an application for the 
burial allowance. Also, this rule does not adversely impact surviving 
spouses who would have been eligible for automatic payment under the 
2014 amendments; we contemplate that all such individuals would also 
qualify for such payments under this rule. As a rule of agency 
procedure or practice, this rule is exempt under 5 U.S.C. 553(b)(A) 
from the prior notice-and-comment requirements of 5 U.S.C. 553. Also, 
this rule is exempt from the delayed effective date requirement under 5 
U.S.C. 553(d) because it is a procedural rule and, alternatively, 
because this rule is beneficial to surviving spouses at a time of need, 
pursuant to 5 U.S.C. 553(d)(3), VA finds good cause to make the 
amendments effective on the date of publication.

Paperwork Reduction Act

    Section 3.1703 contains an information collection approved by the 
Office of Management and Budget (OMB) under OMB control number 2900-
0003. This final rule does not contain any provisions constituting an 
additional collection of information under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501-3521) and does not alter the existing 
information collection contained in Sec.  3.1703; rather, the final 
rule merely provides that VA may grant benefits in certain cases even 
if the claimant has not filed an application under the existing 
information collection.

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by OMB, 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 this Executive 
Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's website 
at http://www.va.gov/orpm by following the link for ``VA Regulations 
Published from FY 2004 through Fiscal Year to Date.'' This rule is not 
an Executive Order 13771 regulatory action because this rule is not 
significant 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 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 one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

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 will not directly affect any small entities; only 
individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 
605(b), this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this rulemaking is 64.101, Burial Expenses 
Allowance for Veterans.

List of Subjects in 38 CFR Part 3

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

Signing Authority

    The Secretary of Veterans Affairs approved this document and 
authorized the undersigned to sign and submit the document to the 
Office of the Federal Register for publication electronically as an 
official document of the Department of Veterans Affairs. Robert L. 
Wilkie, Secretary, Department of Veterans

[[Page 39888]]

Affairs, approved this document on August 6, 2018, for publication.

    Dated: August 6, 2018.
Jeffrey M. Martin,
Impact Analyst, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For reasons set out in the preamble, the Department of Veterans 
Affairs 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. Amend Sec.  3.1702 by revising paragraph (a) to read as follows:


Sec.  3.1702   Persons who may receive burial benefits; priority of 
payments.

    (a) Automatic payments to surviving spouses of eligible deceased 
veterans. (1) On or after July 7, 2014, VA may automatically pay a 
burial benefit to an eligible veteran's surviving spouse, whether or 
not previously established as a dependent spouse on the deceased 
veteran's compensation or pension award, when VA knows of or is 
informed of the existence of the surviving spouse, can establish the 
surviving spouse's relationship under Sec.  3.204 (when applicable), 
and is able to determine burial benefits eligibility based on evidence 
of record at the time VA updates its computer system to reflect the 
veteran's date of death.
    (2) VA may grant additional burial benefits, including the plot or 
interment allowance, reimbursement for transportation, and the service-
connected burial allowance under Sec.  3.1704, to the surviving spouse 
or any other eligible person in accordance with paragraph (b) of this 
section and based on a claim described in Sec.  3.1703.
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[FR Doc. 2018-17274 Filed 8-10-18; 8:45 am]
 BILLING CODE 8320-01-P