[Federal Register Volume 62, Number 126 (Tuesday, July 1, 1997)]
[Rules and Regulations]
[Pages 35421-35423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17226]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI66
Veterans' Benefits Improvements Act of 1996
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends Department of Veterans Affairs (VA)
adjudication regulations concerning: The clothing allowance based on
certain service-connected disabilities; the dates of the Vietnam era;
the payment of benefits to a surviving spouse for the month in which
the veteran dies; the period for which accrued benefits are payable;
and burial allowance eligibility. The intended effect of this amendment
is to bring VA regulations into conformance with statutory revisions
contained in the Veterans' Benefits Improvements Act of 1996.
DATES: Effective Date: October 9, 1996, except for amendments to
Secs. 3.2(f) and 3.307(a)(6), which are effective January 1, 1997.
Applicability: The amendments to 38 CFR 3.20 apply to the deaths of
compensation and pension recipients that occur after December 31, 1996.
The Amendment to 38 CFR 3.1000 applies to claims for accrued benefits
based on deaths that occurred before October 9, 1996, and that were not
finally decided before then, as well as to claims based on deaths that
occurred after then.
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone
(202) 273-7230.
SUPPLEMENTARY INFORMATION: Under the provisions of 38 U.S.C. 1162, VA
pays a clothing allowance to each veteran who, because of a service-
connected disability, either wears or uses a prosthetic or orthopedic
appliance which tends to wear out or tear the veteran's clothing, or
uses a medication prescribed for a skin condition due to a service-
connected disability and which causes irreparable damage to the
veteran's outer clothing. Although 38 U.S.C. 5313 limits the amount of
compensation or dependency and indemnity compensation that is payable
to any person who is incarcerated in a Federal, State, or local penal
institution for a period in excess of 60 days for conviction of a
felony, there was no such restriction on payment of the clothing
allowance.
Section 502 of the Veterans' Benefits Improvements Act of 1996,
Public Law 104-275, amended 38 U.S.C. Chap. 53 to reduce the amount of
the clothing allowance payable under 38 U.S.C. 1162 to veterans who are
incarcerated in a Federal, State, or local penal institution for a
period in excess of 60 days and who are furnished clothing without
charge by the institution. Under this amendment, VA is required to
reduce the amount of the clothing allowance by an amount equal to 1/365
of the amount of the allowance otherwise payable for each day on which
the veteran was incarcerated during the 12-month period preceding the
date on which payment of the clothing allowance would be due. VA is
amending 38 CFR 3.810 to reflect this statutory change.
The Vietnam era was defined as the period August 5, 1964, through
May 7, 1975, inclusive (See 38 CFR 3.2(f)). Section 505 of Public Law
104-275 amended 38 U.S.C. 101(29) to expand the Vietnam era to the
period beginning on February 28, 1961, and ending on May 7, 1975, but
only for veterans who served in the Republic of Vietnam during that
period. Public Law 104-275 also amended 38 U.S.C. 1116(a) to expand the
period during which veterans must have served in Vietnam to be entitled
to the application of certain presumptions relating to exposure to
certain herbicide agents and the service connection of associated
diseases to the period beginning January 9, 1962, and ending on May 7,
1975. VA is amending 38 CFR 3.2(f) and 3.307(a)(6) to reflect these
statutory changes, which are effective January 1, 1997.
Under the provisions of 38 U.S.C. 5310, a veteran's surviving
spouse who
[[Page 35422]]
is entitled to death benefits for the month of the veteran's death gets
an amount not less than the amount which the veteran would have
received for that month but for his or her death. Section 506 of Pub.
L. 104-275 revised 38 U.S.C. 5310 to allow a surviving spouse who is
not entitled to death benefits for the month of the veteran's death to
receive a benefit in an amount equal to the amount which the veteran
would have received for that month but for his or her death. It further
provided that a compensation or pension payment issued to a veteran for
the month of death shall be treated as being payable to a surviving
spouse who is entitled to this new benefit and that if the payment is
negotiated or deposited it will be considered as the benefit due the
surviving spouse. However, if the payment is less than the amount the
veteran would have received for the month of death, the statute
requires that the unpaid amount be treated as an accrued benefit (See
38 U.S.C. 5121 and 38 CFR 3.1000). The changes made by section 506 of
Public Law 104-275 apply to deaths occurring after December 31, 1996.
VA is amending 38 CFR 3.20 to reflect these statutory changes.
Under the provisions of 38 U.S.C. 5121, when an individual eligible
for VA periodic monetary benefits dies, the amount of benefits due but
unpaid at death may be paid either to certain survivors or as a
reimbursement to the person who bore the expense of the individual's
last illness and burial. The amount of accrued benefits payable was
limited to the amount due for a period not to exceed one year prior to
the date of death. Section 507 of Public Law 104-275 revised this to
the amount due for a period not to exceed two years prior to the date
of death. VA is amending 38 CFR 3.1000(a) to reflect this statutory
change.
Under the provisions of 38 U.S.C. 2303, VA pays burial benefits on
behalf of a veteran who dies in a VA facility to which he or she was
admitted for hospital, nursing home, or domiciliary care, or who dies
in an institution at which he or she was receiving hospital or nursing
home care at the expense of the United States at the time of death.
Section 212 of Public Law 104-275 amended 38 U.S.C. 2303 to provide
burial benefits for certain veterans who die in State nursing homes. VA
is amending 38 CFR 3.1600(c) to reflect this statutory change, to
correct an obsolete reference to 38 U.S.C. 1701(4), and to include
within the scope of the term ``hospitalized by VA'' contract hospital
care under 38 U.S.C. 1703. These amendments merely conform the
regulations to the governing statutory provisions.
VA is issuing a final rule to make the above described amendments.
Because these amendments merely reflect statutory changes, publication
as a proposal for public comment is unnecessary.
Because no notice of proposed rulemaking 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
64.104, 64.105, 64.109, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: April 28, 1997.
Jesse Brown,
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.
2. In Sec. 3.2, paragraph (f) is revised to read as follows:
Sec. 3.2 Periods of war.
* * * * *
(f) Vietnam era. The period beginning on February 28, 1961, and
ending on May 7, 1975, inclusive, in the case of a veteran who served
in the Republic of Vietnam during that period. The period beginning on
August 5, 1964, and ending on May 7, 1975, inclusive, in all other
cases.
(Authority: 38 U.S.C. 101(29))
* * * * *
3. In Sec. 3.20, paragraph (c) is added to read as follows:
Sec. 3.20 Surviving spouse's benefit for month of veteran's death.
* * * * *
(c)(1) Where a veteran receiving compensation or pension dies after
December 31, 1996, the surviving spouse, if not entitled to death
compensation, dependency and indemnity compensation, or death pension
for the month of death, shall be entitled to a benefit for that month
in an amount equal to the amount of compensation or pension the veteran
would have received for that month but for his or her death.
(2) A payment issued to a deceased veteran as compensation or
pension for the month in which death occurred shall be treated as
payable to that veteran's surviving spouse, if the surviving spouse is
not entitled to death compensation, dependency and indemnity
compensation or death pension for that month and, if negotiated or
deposited, shall be considered to be the benefit to which the surviving
spouse is entitled under paragraph (c)(1) of this section. However, if
such payment is in an amount less than the amount of the benefit under
paragraph (c)(1) of this section, the unpaid difference shall be
treated in the same manner as an accrued benefit under Sec. 3.1000 of
this part.
(Authority: 38 U.S.C. 5310(b))
Sec. 3.307 [Amended]
4. In Sec. 3.307, paragraphs (a)(6)(i) and (a)(6)(iii) are amended
by removing ``during the Vietnam era'' wherever it appears, and adding,
in its place, ``during the period beginning on January 9, 1962, and
ending on May 7, 1975'', and by adding an authority citation at the end
of paragraph (a)(6)(i) and by revising the authority citation to
paragraph (a)(6)(iii) to read as follows:
Sec. 3.307 Presumptive service connection for chronic, tropical or
prisoner-of-war related disease, or disease associated with exposure to
certain herbicide agents; wartime and service on or after January 1,
1947.
(a) * * *
(6) * * *
(i) * * *
(Authority: 38 U.S.C. 1116(a)(4))
* * * * *
(iii) * * *
(Authority: 38 U.S.C. 501(a) and 1116(a)(3))
* * * * *
Sec. 3.810 [Amended]
5. In Sec. 3.810, paragraph (a), the first sentence, is amended by
removing ``A'' and adding, in its place, ``Except as provided in
paragraph (d) of this section a''; and paragraph (d) is added after the
authority citation following paragraph (c) to read as follows:
[[Page 35423]]
Sec. 3.810 Clothing allowance.
* * * * *
(d) If a veteran is incarcerated in a Federal, State, or local
penal institution for a period of more than 60 days and is furnished
clothing without charge by the institution, VA shall reduce the amount
of the annual clothing allowance by 1/365th of the amount otherwise
payable for each day the veteran was incarcerated during the 12-month
period preceding the anniversary date for which entitlement is
established. No reduction shall be made for the first 60 days of
incarceration.
(Authority: 38 U.S.C. 5313A)
Sec. 3.1000 [Amended]
6. In Sec. 3.1000, the introductory text of paragraph (a) is
amended by removing ``1 year'' and adding, in its place, ``2 years'',
and by adding an authority citation to read as follows:
Sec. 3.1000 Under 38 U.S.C. 5121.
(a) * * *
(Authority: 38 U.S.C. 5121(a)
* * * * *
Sec. 3.1600 [Amended]
7. In Sec. 3.1600, paragraph (c), the second sentence is amended by
removing ``(as defined in 38 U.S.C. 1701(4))'' and adding, in its
place, ``(as described in 38 U.S.C. 1701(3))''; by removing ``1711(a),
or'' and adding, in its place, ``1711(a); admission (transfer) to a
non-VA facility (as described in 38 U.S.C. 1701(4)) for hospital care
under the authority of 38 U.S.C. 1703;'' and by removing ``United
States.'' and adding, in its place, ``United States; or admission
(transfer) to a State nursing home for nursing home care with respect
to which payment is authorized under the authority of 38 U.S.C.
1741.''.
[FR Doc. 97-17226 Filed 6-30-97; 8:45 am]
BILLING CODE 8320-01-U
