[Federal Register Volume 60, Number 46 (Thursday, March 9, 1995)]
[Rules and Regulations]
[Page 12886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5761]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH09
Special Monthly Compensation Ratings
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is amending its
regulations concerning the rate of special monthly compensation payable
to a veteran with a totally disabling service-connected disability who
either has additional service-connected disability ratable at 60
percent or is permanently housebound by reason of service-connected
disability. This change is necessary because of a General Counsel
precedent opinion which held that the regulation restricts eligibility
in a manner not authorized by the statute. The intended effect of this
amendment is to bring the regulation into conformity with the statute.
EFFECTIVE DATE: This final rule is effective March 9, 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: Special monthly compensation is a benefit
established by Congress to be paid for specified disabilities
independent of any other compensation authorized by Title 38 U.S.C.
1114(a)-(j). 38 U.S.C. 1114(s) provides for payment of special monthly
compensation for a veteran who has a service-connected disability rated
as total and (1) has additional service-connected disability or
disabilities independently ratable at 60 percent or more, or (2) is
permanently housebound by reason of a service-connected disability or
disabilities. 38 CFR 3.350(i), the implementing regulation, provides
that the special monthly compensation rate under 38 U.S.C. 1114(s) is
payable where the veteran has a single service-connected disability
rated as 100 percent ``without resort to individual unemployability''
and meets the other criteria.
In a precedent opinion dated February 2, 1994 (OGC Prec 2-94), VA's
General Counsel held that the plain and unambiguous language of 38
U.S.C. 1114(s) does not restrict the nature of total ratings that may
serve as a basis for entitlement to the rate of special monthly
compensation which section 1114(s) authorizes. Based on that holding,
the General Counsel found that the portion of 38 CFR 3.350(i) which
precludes eligibility if the service-connected disability rated as
total is so rated due to individual unemployability is an unauthorized
restriction.
The General Counsel has recommended that the regulation be revised.
We are, therefore, revising the text of 38 CFR 3.350(i) to remove the
unauthorized restriction.
VA is issuing a final rule to amend the provisions of 38 CFR
3.350(i). Publication of this amendment as a proposed rule is
unnecessary because this notice merely amends 38 CFR 3.350(i) to
conform to the terms of the governing statute.
The Secretary hereby certifies that these regulatory amendments
will not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601-612. The reason for this certification is that
these amendments would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), these amendments are exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program number is
64.109.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Health care, Persons
with disabilities, Pensions, Veterans.
Approved: November 23, 1994.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR Part 3 is amended
as set forth below:
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. The introductory text of paragraph 3.350(i) is amended by
removing the phrase ``without resort to individual unemployability''.
[FR Doc. 95-5761 Filed 3-8-95; 8:45 am]
BILLING CODE 8320-01-P
