[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52862-52863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25128]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH67
Reinstatement of Benefits Eligibility Based Upon Terminated
Marital Relationships
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning reinstatement of benefits for a
surviving spouse of a veteran whose remarriage after the veteran's
death is terminated by legal proceedings. The amendment makes clear
that such proceedings must have been brought by the individual seeking
to establish his or her status as the veteran's surviving spouse. The
purpose of the amendment is to make the regulation conform to the
relevant statute.
EFFECTIVE DATE: This amendment is effective October 11, 1995.
FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone
(202) 273-7210.
SUPPLEMENTARY INFORMATION: A surviving spouse of a veteran must be
unmarried to receive VA benefits. The law regarding the eligibility for
benefits of a surviving spouse of a veteran who remarries after the
veteran's death and whose remarriage later terminates has changed
several times in recent years.
Before November 1, 1990, 38 U.S.C. 103(d)(2) provided that the
remarriage of a surviving spouse of a veteran would not bar benefits if
the remarriage was terminated by death or dissolved by a court with
basic authority to render divorce decrees, unless VA determined that
the divorce was secured through fraud by the surviving spouse or
collusion.
The Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. 101-
508, deleted 38 U.S.C. 103(d)(2). The effect of this change was to deny
benefits to those filing claims on or after November 1, 1990, who had
remarried at any time after the death of the veteran.
The Veterans' Benefits Programs Improvement Act of 1991, Pub. L.
102-86, provided that the 1990 OBRA amendments would not apply to any
person who met the statutory definition of a surviving spouse on
October 31, 1990, unless after that date the individual married or
lived with another person and held himself or herself out openly to the
public as that person's spouse.
The Veteran's Benefits Act of 1992, Pub. L. 102-568, provided in
section 103 that the 1990 OBRA amendment would not apply to any case in
which a legal proceeding that terminated an existing marital
relationship was commenced before November 1, 1990, by an individual
who, but for that marital relationship, would be considered the
surviving spouse of a veteran.
VA regulations pertaining to reinstatement of benefits eligibility
of a surviving spouse based upon termination of a marital relationship
appear at 38 U.S.C. 3.55(a). Previously, subsection (a) included the
following provisions:
(2) On or after January 1, 1971, remarriage of a surviving
spouse terminated prior to November 1, 1990, or terminated by legal
proceedings commenced prior to November 1, 1990, shall not bar the
furnishing of benefits to such surviving spouse provided that the
marriage:
* * * * *
(ii) Has been dissolved by a court with basic authority to
render divorce decrees unless the Department of Veterans Affairs
determines that the divorce was secured through fraud by the
surviving spouse or through collusion.
* * * * *
Since 38 CFR 3.55(a)(2) previously did not provide that the legal
proceedings which result in termination of the remarriage must have
been commenced by the individual seeking benefits as a veteran's
surviving spouse, it is now amended to conform with section 103 of Pub.
L. 102-568. We are also making nonsubstantive amendments to 38 CFR
3.400 in order to update cross-references and authority citations.
VA is issuing a final rule to make the above described amendments.
The amendment to 38 CFR 3.55(a)(2) is necessary to conform that
regulatory
[[Page 52863]]
provision with Pub. L. 102-568. Because these amendments merely restate
a statutory provision and make nonsubstantive changes, publication as a
proposal for public comment is unnecessary.
Administrative Procedure Act
The substantive changes made by this final rule merely reflect a
statutory change contained in Pub. L. 102-568. Accordingly, pursuant to
5 U.S.C. 553, there is a basis for dispensing with prior notice and
comment on this final rule and dispensing with a 30-day delay of its
effective date.
Regulatory Flexibility Act
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
et seq.).
The catalog of Federal Domestic Assistance program numbers are
64.101, 64.105, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Health care,
Individuals with disabilities, Pensions, Veterans.
Approved: September 11, 1995.
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.
Sec. 3.55 [Amended]
2. In Sec. 3.55(a)(2)introductory text add ``by an individual who,
but for the remarriage, would be considered the surviving spouse,''
immediately before ``shall not bar''.
Sec. 3.400 [Amended]
3. In Sec. 3.400(u)(3) remove ``Sec. 3.55(e)'' and add, in its
place, ``Sec. 3.55(b)''.
4. In Sec. 3.400(u)(4) remove ``Sec. 3.55(e)'' and add, in its
place, ``Sec. 3.55(b)''.
5. In Sec. 3.400(v), the heading, remove ``38 U.S.C. 103(d)(2)''
and add, in its place, ``38 U.S.C. 103(d)''.
6. In Sec. 3.400(v)(3) remove ``Sec. 3.55(b)'' and add, in its
place, ``Sec. 3.55(a)''.
7. In Sec. 3.400(v)(4) remove ``Sec. 3.55(b)'' and add, in its
place, ``Sec. 3.55(a)''.
8. In Sec. 3.400(w), the heading, remove ``103(d)(3),''.
9. In Sec. 3.400(w) remove ``Sec. 3.55(c) or (d)'' and add, in its
place, ``Sec. 3.55(a)''.
[FR Doc. 95-25128 Filed 10-10-95; 8:45 am]
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