[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Proposed Rules]
[Pages 17354-17358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04895]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3, 8 and 20

RIN 2900-AR32


Clarification of VA's Processing of Survivors Benefits Claims

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulations concerning survivors benefits claims. With 
respect to claims processing, VA proposes to clarify that, if VA 
determines that a surviving spouse or child is eligible for dependency 
and indemnity compensation (DIC), VA would concurrently deny the co-
existing claim for survivors pension, except where paying survivors 
pension would be more beneficial to the claimant, which would only be 
the case if the claimant is the veteran's surviving spouse and the 
claimant's application indicates that the claimant does not have any 
dependents, is currently in a nursing home, and has applied for or is 
currently receiving Medicaid. The intended effect of this rulemaking is 
to streamline and improve the timeliness of the adjudication of claims 
processing for VA survivors benefits while ensuring that claimants 
receive the greatest benefit allowed by law.

DATES: Comments must be received on or before May 10, 2024.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments; however, we will post comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking. In accordance with the Providing Accountability Through 
Transparency Act of 2023, a 100 word Plain-Language Summary of this 
proposed rule is available at Regulations.gov, under RIN-2900-AR32.

FOR FURTHER INFORMATION CONTACT: Eric Baltimore, Management and Program 
Analyst, Pension and Fiduciary Service (21PF), Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420; (202) 632-8863 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: A surviving spouse or child of a Veteran may 
apply for any of several survivors benefits including DIC, survivors 
pension, and/or accrued benefits. See 38 U.S.C. 5101(b)(1). VA is 
required to address and make a decision on each benefit, irrespective 
of claimant intent, whenever a surviving spouse or child submits a 
claim for DIC, survivors pension, and/or accrued benefits on VA Form 
21P-534 or 21P-534EZ. This proposed rule would only address VA's 
processing of the survivors pension claims of surviving spouses and 
children whom VA has determined are eligible for DIC. VA is not 
proposing to change its processing of survivors pension claims in cases 
in which the claimant is ineligible for DIC. Nor is VA proposing to 
change its processing of accrued benefits claims.
    DIC and survivors pension provide a basic rate of payment with 
increases where (1) the survivor is in need of regular aid and 
attendance, (2) the survivor is permanently housebound, or (3) the 
surviving spouse has custody of the veteran's minor child(ren), and, in 
each instance, the DIC rate exceeds the maximum annual pension rate. 
Compare 38 U.S.C. 1311 (providing the DIC rates for surviving spouses) 
and 1313 (providing the DIC rates for children), with 38 U.S.C. 1541 
(providing the survivors pension rates for surviving spouses) and 1542 
(providing the survivors pension rates for children). Because DIC and 
survivors pension are not payable concurrently, 38 U.S.C. 1317(a), once 
VA finds the survivor eligible for DIC, specific factual findings with 
respect to survivors pension will not result in VA paying additional 
benefits to that survivor.
    ``VA possesses a duty not only to individual claimants, but to the 
effective functioning of the veterans [benefits] system as a whole.'' 
Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs, 818 F.3d 1336, 
1354 (Fed. Cir. 2016). Recipients of VA's survivors benefits--
especially survivors pension--are some of VA's most vulnerable 
beneficiaries. Most beneficiaries who receive survivors pension are 
elderly widows or widowers who just lost their spouse's household 
income and have income below the maximum annual pension rate of $11,102 
(surviving spouse with no dependents effective December 1, 2023), 
established by Congress for entitlement to VA survivors pension. VA 
believes this population is best served by VA focusing its adjudication 
resources in the areas more likely to result in benefits flowing to 
survivors. To this end, VA proposes to amend 38 CFR 3.152 to 
specifically state the general rule that a grant of DIC would result in 
the automatic denial of survivors pension, to ensure that a surviving 
spouse or child would receive the greater benefit more quickly.
    VA acknowledges its statutory obligation to ``decide all questions 
of law and fact necessary to a decision by [VA] under a law that 
affects the provision of benefits by [VA] to veterans or the dependents 
or survivors of veterans.'' 38 U.S.C. 511(a). A ``decision'' either 
grants or denies the

[[Page 17355]]

benefit sought. Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000). 
With respect to claims for DIC and survivors pension, Congress has 
provided a general rule of decision by statute, stating that no person 
eligible for DIC shall be eligible for survivors pension. 38 U.S.C. 
1316(b), 1317(a). Therefore, once VA finds eligibility for DIC, there 
are no additional findings of law or fact necessary to decide the claim 
for survivors pension. The survivor's eligibility for DIC itself 
precludes eligibility for survivors pension. VA proposes to amend 
Sec. Sec.  3.5(c) and 3.152(b)(1) to clarify this point.
    VA also recognizes that Congress has enacted an exception to the 
rule provided in 38 U.S.C. 1317(a), permitting a surviving spouse who 
is eligible for DIC to nonetheless receive survivors pension in certain 
circumstances. 38 U.S.C. 1317(b). VA proposes to amend Sec. Sec.  3.5 
and 3.152 to account for this exception as well. For context, 38 U.S.C. 
1317(a) states, in relevant part, ``[e]xcept as provided in subsection 
(b), no person eligible for [DIC] by reason of any death occurring 
after December 31, 1956, shall be eligible by reason of such death for 
any payments under . . . provisions of law administered by the 
Secretary providing for the payment of . . . death pension.'' Because 
survivors pension is only payable to surviving spouses and children of 
wartime veterans, this restriction on payment of survivors pension to 
someone eligible for DIC only affects those individuals. The exception 
states that ``[a] surviving spouse who is eligible for [DIC] may elect 
to receive death pension instead of such compensation.'' 38 U.S.C. 
1317(b). When considered in isolation, subsection (b) appears to create 
an unfettered right of election for surviving spouses, which would mean 
that the general rule only applies to children. Yet, of the 259,462 
surviving spouses and children receiving DIC at the time the exception 
was enacted, less than nine percent were children. More than 91 percent 
were surviving spouses. Because ``it is hard to even imagine a rational 
statutory exception that is intentionally designed to swallow the 
rule,'' AFGE v. Trump, 318 F. Supp. 3d 370, 434 (D.D.C. 2018), vacated 
on other grounds by 929 F.3d 748, 761 (D.C. Cir. 2019)), ``[i]n 
construing provisions . . . in which a general statement of policy is 
qualified by an exception, [courts] usually read the exception narrowly 
in order to preserve the primary operation of the provision.'' Comm'r 
v. Clark, 489 U.S. 726, 739 (1989) (citing Phillips, Inc. v. Walling, 
324 U.S. 490, 493 (1945)). Therefore, we turn to legislative history 
for further insight into congressional intent. See Reid v. Department 
of Commerce, 793 F.2d 277, 282 (Fed. Cir. 1986) (``resort[ing] to 
legislative history to ascertain the intent of Congress'' when ``a 
literal reading of the statute'' ``would lead to a result at variance 
with the policy of the legislation as a whole'').
    The legislative history discusses a surviving spouse's election of 
survivors pension solely in terms of cost savings for the Federal 
Government. See Public Law 103-446, sec. 111 (captioned ``Cost-Savings 
Provisions''). As stated previously, the applicable DIC rate always 
exceeds the maximum annual pension rate. Therefore, looking only at the 
monthly benefit payments, the default rule that a person eligible for 
the greater benefit is ineligible for the lesser benefit would increase 
costs. From that perspective, it would appear that permitting any 
surviving spouse to elect the lesser benefit would yield the most cost 
savings. However, VA's costs are not limited to benefit payments. VA 
also incurs adjudication-related costs. The default rule in section 
1317(a) reduces adjudication costs because VA only has to adjudicate 
entitlement to the lesser benefit if the claimant is ineligible for the 
greater benefit. Cost savings can only be realized through an election 
provision if enough claimants actually elect the lesser benefit that 
the aggregate reduction in benefit payments actually exceeds the 
additional administrative costs associated with the adjudication of 
entitlement to the lesser benefit.
    Yet, the Court of Appeals for Veterans Claims has recognized the 
high improbability that a claimant would intentionally seek less than 
the maximum benefit. AB v. Brown, 6 Vet. App. 35, 38 (1993) (``the 
claimant will generally be presumed to be seeking the maximum benefit 
allowed by law and regulation''). Further, it is very unlikely that 
Congress established section 1317(b) for the purpose of allowing 
claimants to elect the lesser benefits where doing so is contrary to 
their own interests.
    Nonetheless, the legislative history does identify one situation in 
which the payment of survivors pension would result in more funds 
actually ending up in the hands of the claimant, while at the same time 
yielding cost savings to the Federal government: if a surviving spouse 
who has no dependents is receiving nursing home care paid for by a 
joint Federal and state program known as Medicaid. If an individual 
does not have dependents, Medicaid will not pay for the individual's 
nursing home care unless all of the individual's income is first used 
toward the nursing home costs. As a result, if VA pension constitutes 
countable income for Medicaid purposes, the VA pension program is 
essentially paying for nursing home care that would otherwise be paid 
for by Medicaid. Recognizing this, in 1990, Congress enacted a 
provision providing pension payments at $90.00 per month for Veterans 
who have no dependents and are receiving nursing home care at Medicaid 
expense. H.R. Rep. No. 101-964, at 982-83 (1990). Congress also made 
clear that the $90.00 per month was not countable income for Medicaid 
purposes, which provided an incentive for Veterans to elect the pension 
benefit.
    In 1992, Congress extended the same policy to surviving spouses. 
Veterans Benefits Act of 1992, Public Law 102-568, sec. 601(a). 
However, the statutory bar in 38 U.S.C. 1317(a) against eligibility for 
survivors pension when an individual was eligible for DIC limited the 
cost savings to the Federal Government, because it required VA to pay 
DIC rather than the protected pension benefit. To address this, in 
1994, Congress enacted 38 U.S.C. 1317(b) as a cost-saving measure, 
enabling surviving spouses to elect survivors pension in lieu of DIC. 
H.R. Rep. No. 103-669, at 11. A surviving spouse who has no dependents 
and requires nursing home care and who receives DIC would have to use 
all the DIC for nursing home care costs before Medicaid coverage would 
apply. A surviving spouse requiring nursing home care may, instead, 
choose to elect survivors pension to receive $90.00 per month, which is 
not countable income for Medicaid purposes, in addition to receiving 
Medicaid coverage. As a result, the surviving spouse's nursing home 
care costs would be covered more by Medicaid and less by VA and the 
Federal Government.
    VA acknowledges that the text of section 1317(b) is not expressly 
limited to the circumstance involving a surviving spouse who has no 
dependents and requires nursing home care paid by Medicaid or with an 
application pending with Medicaid for such care. However, the only fact 
pattern addressed in legislative history materials produced during the 
conference report stage was that involving surviving spouses who do not 
have any dependents and who are receiving nursing home care paid by 
Medicaid, see H.R. Rep. No. 103-669 at 11; see 140 Cong. Rec. 11355 
(daily ed. Oct. 7, 1994) (joint explanatory statement) (``This would 
permit surviving spouses who are in Medicaid-covered nursing homes and 
who receive

[[Page 17356]]

DIC to elect to receive death pension, in order to be able to retain 
$90 of their monthly benefits''). ``The conference report stage is 
closest to final passage and is generally thus the best indicator of 
legislative meaning apart from the statute itself.'' Disabled in Action 
of Metro. New York v. Hammons, 202 F.3d 110, 125 (2d Cir. 2000).
    Moreover, VA is unaware of a comparable fact pattern in which a 
lesser VA benefit may result in a greater aggregate recovery for a 
claimant. As noted above, Congress established in section 1317(a) a 
general rule that entitlement to DIC precludes entitlement to survivors 
pension, and the exception in section 1317(b) was enacted to address a 
narrow situation, in which the exception serves both to maximize VA 
payments to the claimant and to limit Federal expenditures that would 
otherwise be diverted to third parties. VA believes that applying the 
exception only to those cases involving a surviving spouse who has no 
dependents and requires nursing home care paid by Medicaid or with an 
application pending Medicare for such care best balances the goals of 
section 1317(a) and (b), and best serves VA claimants by avoiding the 
unnecessary case-specific and systemic delays and the Federal 
expenditures that would result from developing and deciding pension 
claims that would not maximize VA benefits to claimants.
    Therefore, VA interprets section 1317(b) as applying only in the 
circumstance involving a surviving spouse who has no dependents and 
requires nursing home care paid by Medicaid or with an application 
pending with Medicaid for such care. Because survivors pension would be 
the better benefit for the surviving spouse when a surviving spouse 
with no dependents is receiving nursing home care paid by Medicaid, VA 
would automatically grant survivors pension, provide a formal rating 
decision denying DIC, and inform the surviving spouse why VA is 
granting survivors pension. If VA grants a surviving spouse survivors 
pension in lieu of DIC as the more advantageous benefit, the surviving 
spouse is not barred from reapplying for and receiving DIC in the event 
the surviving spouse becomes ineligible for survivors pension at the 
rate provided for in 38 U.S.C. 5503(d). In that circumstance, if the 
surviving spouse's application were received within one year of the 
date on which Medicaid-covered nursing home care ended, VA would deem 
the application to have been received on the date that Medicaid covered 
nursing home care ended and DIC benefits would be effective as of the 
calendar month after Medicaid-covered nursing home care ended. 
Otherwise, DIC benefits would not be effective earlier than the date VA 
receives the claim. Similarly, if a surviving spouse who, but for 
receipt of DIC, would be eligible for survivors pension begins 
receiving Medicaid-covered nursing home care, the surviving spouse 
would not be barred from reapplying for and receiving survivors pension 
at the rate provided for in section 5503(d). In that circumstance, the 
effective date of survivors pension would be based on the date of claim 
for survivors pension and the date DIC payments were discontinued. VA 
proposes to amend Sec. Sec.  3.402 and 3.502(f) to address this change.
    Furthermore, it is not VA's intent to eliminate a survivor's 
opportunity to claim more than one benefit on a single form--rather it 
is to reduce the administrative burden for both VA and the claimant and 
to expedite the delivery of benefits to survivors. If VA determines 
that the claimant is the veteran's surviving spouse or child, but that 
the veteran's death does not entitle the veteran's survivor to DIC, see 
38 U.S.C. 1310, 1318, VA will decide the additional questions of fact 
or law necessary to grant or deny survivors pension. Similarly, where 
VA determines that the claimant is the veteran's surviving spouse and 
the veteran's death entitles the veteran's survivors to DIC, VA will 
determine whether, but for DIC entitlement, the surviving spouse would 
be entitled to survivors pension at the rate provided for in 38 U.S.C. 
5503(d). In addition, in all cases, VA will provide notice of its 
decision with respect to DIC and survivors pension in accordance with 
38 U.S.C. 5104, including any favorable findings that were necessary to 
those decisions and provide such decision notification in writing to 
the claimant and his or her representative, if applicable.
    Therefore, VA proposes to amend Sec. Sec.  3.5(c), 3.152(b)(1) and 
3.702(d)(2) to clarify VA's authority to pay the higher or better 
benefit between DIC and survivors pension. The intended effect of this 
amendment is to streamline and improve the timeliness of the 
adjudication of claims processing for VA survivor benefits and deliver 
decisions on claimed benefits and services more timely to beneficiaries 
in need and during a difficult time.
    VA also proposes to replace the term ``death pension'' with the 
term ``survivors pension'' each place it appears in VA's implementing 
regulations. This will ensure that the language of VA's implementing 
regulations aligns with current usage. Also, VA proposes to replace the 
words ``or compensation'' with ``or death compensation'' each place 
they appear in VA's implementing regulations.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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 14094 (Executive order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 and Executive 
Order 13563. The Office of Information and Regulatory Affairs has 
determined that this rulemaking is not a significant regulatory action 
under Executive Order 12866, as amended by Executive Order 14094. The 
Regulatory Impact Analysis associated with this rulemaking can be found 
as a supporting document at www.regulations.gov.

Paperwork Reduction Act

    Although this proposed rule contains collection of information 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521), there are no provisions associated with this rulemaking 
constituting any new collection of information or any revisions to the 
existing collection of information. The collection of information for 
Sec.  3.152 is currently approved by the Office of Management and 
Budget and has been assigned OMB control number 2900-0004.
    VA's proposed changes would not result in a reduction of an 
information collection burden. A surviving spouse or child applies for 
both DIC and survivors pension using a single form. While some of the 
information solicited by the form is pertinent to either benefit (e.g., 
the claimant's relationship to the veteran and information regarding 
the veteran's service), other information is specific to one benefit 
(e.g., income and asset information with respect to survivor's 
pension). Pursuant to this rulemaking, if VA grants DIC to a

[[Page 17357]]

surviving spouse who is not eligible for the exception under 38 U.S.C. 
1317(b), or to a child, VA would be able to adjudicate the application 
for survivors pension without making specific factual findings 
regarding income and net worth because the claimant's entitlement to 
DIC would itself be a bar to entitlement to survivor's pension. 
Conversely, if VA denies DIC or if the surviving spouse had potential 
eligibility for the exception under 38 U.S.C. 1317(b), VA would have a 
legal obligation to solicit income and net worth information from the 
claimant. Isenhart v. Derwinski, 3 Vet. App. 177, 179-80 (1992). Yet, 
whether that information would be necessary to the adjudication of the 
application would only be known after VA makes a determination 
regarding eligibility for DIC. Considering VA's duties to individual 
claimants as well as the functions of the benefits system as a whole, 
VA believes that continuing to collect information pertinent to 
survivors pension entitlement at the time a surviving spouse or child 
applies for DIC would promote streamlined claims processing and reduce 
the likelihood that claimants would be subject to multiple, separate 
requests for information.

Regulatory Flexibility Act

    The Secretary certifies that this proposed rule would 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. There are no small entities involved with the process and/or 
benefits associated with this rulemaking. Therefore, pursuant to 5 
U.S.C. 605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

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

List of Subjects

38 CFR Part 3

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

38 CFR Part 8

    Life insurance, Military personnel, Veterans.

38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, signed and approved 
this document on March 1, 2024, 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.

Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of General 
Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR chapter 1 as set forth below:

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.  3.5 by revising paragraph (c) to read as follows:


Sec.  3.5  Dependency and indemnity compensation.

* * * * *
    (c) Exclusiveness of remedy. (1) Except as provided in paragraph 
(c)(2) of this section, no person eligible for dependency and indemnity 
compensation by reason of a death occurring on or after January 1, 
1957, shall be eligible by reason of such death for survivors pension 
or death compensation under any other law administered by the 
Department of Veterans Affairs.
    (2) A surviving spouse who, but for the surviving spouse's 
eligibility for dependency and indemnity compensation, would be 
eligible to receive survivors pension at the rate provided for in 38 
U.S.C. 5503(d) will receive survivors pension instead of such 
compensation.

(Authority: 38 U.S.C. 1317)

* * * * *
0
3. Amend Sec.  3.152 by:
0
a. Redesignating paragraph (b)(1) as paragraph (b)(1)(i); and
0
b. Adding paragraph (b)(1)(ii).
    The addition reads as follows:


Sec.  3.152  Claims for death benefits.

* * * * *
    (b)(1)(i) * * *
    (ii)(A) Except as provided in paragraph (b)(1)(ii)(B) of this 
section, an award of dependency and indemnity compensation to a 
surviving spouse or child will result in the denial of survivors 
pension.
    (B) With respect to a claim by a surviving spouse, if the evidence 
establishes that, but for the surviving spouse's eligibility for 
dependency and indemnity compensation, the surviving spouse would be 
eligible to receive survivors pension at the rate provided for in 38 
U.S.C. 5503(d), survivors pension will be paid instead of such 
compensation.

(Authority: 38 U.S.C. 1317)

* * * * *
0
4. Amend Sec.  3.402 by adding paragraph (d) to read as follows:


Sec.  3.402  Surviving spouse.

* * * * *
    (d) Medicaid-covered nursing home care. (1) If a surviving spouse 
spouse described in Sec.  3.152(b)(1)(ii)(B) stops receiving Medicaid-
covered nursing home care, dependency and indemnity compensation, if 
otherwise in order, will be effective as of the date Medicaid coverage 
ceased, if a claim for dependency and indemnity compensation is 
received within one year of the date Medicaid coverage ceased; 
otherwise, it will be effective as of the date of receipt of claim or 
date entitlement arose, whichever is later.
    (2) If a surviving spouse who is receiving dependency and indemnity 
compensation and who, but for eligibility for dependency and indemnity 
compensation, would be eligible for survivors pension, begins receiving 
Medicaid-covered nursing home care, survivors pension will be effective 
as of the first day of the month after dependency and indemnity 
compensation was discontinued, if a claim for survivors pension is 
received within one year of the date dependency and indemnity 
compensation was discontinued; otherwise, it will be effective as of 
the date of receipt of claim or date entitlement arose, whichever is 
later.
0
5. Amend Sec.  3.502 by revising the paragraph heading of paragraph (f) 
to read as follows:


Sec.  3.502  Surviving spouses.

* * * * *

[[Page 17358]]

    (f) Medicaid-covered nursing home care. * * *
* * * * *


Sec.  3.658  [Amended]

0
5. Amend Sec.  3.658 by, in paragraph (b), removing the words ``or 
compensation'' and adding, in their place, the words ``or death 
compensation''.
0
6. Amend Sec.  3.702 by revising paragraph (d) to read as follows:


Sec.  3.702  Dependency and indemnity compensation.

* * * * *
    (d)(1) Except as noted in paragraphs (d)(2) and (g) of this 
section, an election to receive dependency and indemnity compensation 
in lieu of death compensation is final, and the claimant may not 
thereafter reelect death compensation in that case. An election is 
final when the payee (or the payee's fiduciary) has negotiated one 
check for this benefit or when the payee dies after filing an election 
but prior to negotiation of a check.
    (2) A surviving spouse's receipt of survivors pension at the rate 
provided for in 38 U.S.C. 5503(d) in lieu of dependency and indemnity 
compensation will not be a bar to the surviving spouse's receipt of 
such compensation in the event the surviving spouse becomes ineligible 
for survivors pension at the rate provided for in 38 U.S.C. 5503(d).
* * * * *
0
7. Amend part 3, by removing the words ``death pension'', wherever it 
appears, and adding, in their place, the words ``survivors pension''.

PART 8--NATIONAL SERVICE LIFE INSURANCE

0
8. The authority citation for part 8 continues to read as follows:

    Authority: 38 U.S.C. 501, 1901-1929, 1981-1988, unless otherwise 
noted.


Sec.  8.4  [Amended]

0
9. Amend Sec.  8.4, in the introductory text and paragraph (b), by 
removing the words ``death pension'' and adding, in their place, the 
words ``survivors pension''.

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

0
10. The authority citation for part 20 continues to read as follows:

    Authority: 38 U.S.C. 501(a), and as noted in specific sections.


Sec.  20.104  [Amended]

0
11. Amend Sec.  20.104, in paragraph (a)(4), by removing the words 
``death pension'' and adding, in their place, the words ``survivors 
pension''.

[FR Doc. 2024-04895 Filed 3-8-24; 8:45 am]
BILLING CODE 8320-01-P