02-27407. Evidence for Accrued Benefits

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Department of Veterans Affairs (VA) adjudication regulations dealing with accrued benefits, those benefits to which an individual was entitled under existing ratings or decisions, or those based on “evidence in the file at date of death,” which were due and unpaid at the time the individual died. “Evidence in the file at date of death” is now interpreted as evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. Further, “evidence necessary to complete the application” for accrued benefits is now interpreted as information necessary to establish that the claimant is within the category of eligible persons and that circumstances exist which make the claimant the specific person entitled to the accrued benefits. These amendments reflect our interpretation of the governing statute.

DATES:

Effective Date: November 27, 2002.

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 [phone]. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

On March 4, 2002, we published in the Federal Register (67 FR 9638-9640) a proposed rule to amend the adjudication regulations to define the terms “evidence in the file at date of death” and “evidence necessary to complete the application” for the purpose of accrued benefits.

We are also correcting a technical error we made in the second amendatory language instruction of the proposed rule. We proposed to revise “paragraph (d)(4) introductory text,” (emphasis added) 67 FR 9640, whereas we meant to revise paragraph (d)(4) in its entirety (emphasis added). Despite the error in the amendatory instruction, our intent was clearly indicated in the SUPPLEMENTARY INFORMATION discussion of the proposed rule. There, we explained that “38 CFR 3.1000(d)(4) purports to define ‘evidence in the file at date of death,”’ but rather provides that VA may accept identifying, corroborating, or verifying information from certain evidence. 67 FR 9639. Further, we stated that we proposed “to revise § 3.1000(d)(4) to define ‘evidence in the file at the (sic) date of death.”’ 67 FR 9639. Accordingly, in this final rule, we revise paragraph (d)(4) in its entirety to conform with the explanation given in the preamble to the proposed rule.

We requested interested persons to submit comments on or before May 3, 2002. We received no comments. Based on the rationale set forth in the proposed rule, we are adopting the proposed rule as a final rule without change.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This final rule will have no consequential effect on State, local, or tribal governments.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

Regulatory Flexibility Act

The Secretary certifies that the adoption of the 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 does not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance Program Numbers

The catalog of Federal Domestic Assistance program numbers for this final rule 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: August 21, 2002.

Anthony J. Principi,

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. Section 3.1000 is amended by revising the section heading, paragraph (c)(1), and paragraph (d)(4) , to read as follows:

§ 3.1000

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

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(c) * * *

(1) If an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the category of eligible persons under the provisions of paragraphs (a)(1) through (a)(4) or paragraph (b) of this section and that circumstances exist which make the claimant the specific person entitled to payment of all or part of any benefits which may have accrued, VA shall notify the claimant:

(i) Of the type of information required to complete the application;

(ii) That VA will take no further action on the claim unless VA receives the required information; and

(iii) That if VA does not receive the required information within 1 year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application.

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(d) * * *

(4) Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death.

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