[Federal Register Volume 62, Number 128 (Thursday, July 3, 1997)]
[Rules and Regulations]
[Pages 35970-35972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17413]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI83
Minimum Income Annuity
AGENCY: Department of Veterans Affairs.
ACTION: Interim rule with request for comments.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication regulations to provide for payment of the minimum income
annuity, authorized by Pub. L. 92-425 as amended, to certain surviving
spouses. This amendment is necessary to reflect statutory revisions
contained in the National Defense Authorization Act for Fiscal Year
1997 that transfers the responsibility for paying this benefit from the
Department of Defense (DoD) to VA.
DATES: Effective date: July 1, 1997.
Comment Date: Comments must be received by VA on or before
September 2, 1997.
ADDRESSES: Mail or hand deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should
indicate that they are submitted in response to ``RIN 2900-AI83.'' All
written comments received will be available for public inspection at
the above address in the Office of Regulations Management, Room 1158,
between the hours of 8 a.m. and 4 p.m., Monday through Friday (except
holidays).
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: Pub. L. 92-425 section 4, 86 Stat. 706, 712
(1972) (10 U.S.C. 1448 note), provides for payment of a guaranteed
minimum annual income (the so-called minimum-income-widow annuity,
hereinafter referred to as the minimum income annuity) to certain
surviving spouses of persons entitled to military retired or retainer
pay at the time of their death. To be eligible, a person must: (1) Be
the surviving spouse of a military retiree who died prior to March 24,
1974; (2) be eligible for VA nonservice-connected death pension; (3)
have annual income that is less than the maximum annual rate of pension
under 38 U.S.C. 1541(b); and (4) be ineligible to receive an annuity
under the Survivor Benefit Plan (10 U.S.C. 1447-1455).
Section 638 of the National Defense Authorization Act for Fiscal
Year 1997, Pub. L. 104-201, sec. 638, 110 Stat. 2422, 2581, transfers
responsibility for the payment of the minimum income annuity to the
Secretary of Veterans Affairs from DoD. However, DoD remains
responsible for funding this benefit and determining basic eligibility.
This transfer is effective on July 1, 1997, and applies with respect to
payments of benefits for any month after June 1997.
Pub. L. 104-201 also provides that the minimum income annuity shall
not affect the pension eligibility of the surviving spouse even though,
as a result of including the amount of the annuity as pension income,
no amount of pension is due. We interpret this provision to mean that
an individual is still to be considered ``eligible for pension'' from
VA for purposes of determining basic eligibility for the minimum income
annuity even if that
[[Page 35971]]
individual's income is excessive for VA pension purposes when the
minimum income annuity is added to any other countable income.
We are adding a new section, 3.811, to title 38, Code of Federal
Regulations, to reflect these statutory provisions.
Under DoD procedures (DoD Financial Management Regulation, Chapter
10, 91001), the minimum income annuity is payable to surviving spouses
receiving Spanish-American War pension without regard to income. Since
the pension paid to survivors of Spanish-American War veterans under 38
U.S.C. 1536 is not an income-based program, we will continue to pay the
minimum income annuity to those beneficiaries in the same manner as
DoD.
Pub. L. 92-425, as amended, specifies that annual income for
minimum income annuity purposes is to be determined in the same manner
as VA determines income for pension purposes. Consistent with that
requirement, we will determine a beneficiary's annual income for the
purpose of the minimum income annuity under the provisions of
Secs. 3.271 and 3.272 for beneficiaries receiving improved pension, or
under Secs. 3.260 through 3.262 for beneficiaries receiving old law or
section 306 pensions, except that the amount of the minimum income
annuity will be excluded from the calculation.
38 U.S.C. 5123 requires VA to round down the amounts of section 306
pension and pension payable under 38 U.S.C. 1521, 1541 and 1542 to the
nearest dollar. There is no similar requirement in title 10, United
States Code, for computing the minimum income annuity. Therefore, we
will not round the monthly minimum income benefit to the nearest whole
dollar.
Pub. L. 92-425, as amended, provides that the amount of the minimum
income annuity is calculated by subtracting the income of the surviving
spouse, exclusive of VA pension, but including benefits payable under
10 U.S.C. 1431-1436 (Retired Servicemen's Family Protection Plan
(RSFPP)) from the maximum annual pension rate under 38 U.S.C. 1541(b).
Since RSFPP benefits are countable as income for improved pension
purposes, for beneficiaries receiving improved pension, VA will
determine the minimum income annuity payment by subtracting the annual
income for pension purposes from the maximum annual pension rate under
38 U.S.C. 1541(b).
Since RSFPP benefits are not countable income for old law and
section 306 pensions (See 38 CFR 3.261(a)(14)), for beneficiaries
receiving old law and section 306 pensions, VA will determine the
minimum income annuity payment by reducing the maximum annual pension
rate under 38 U.S.C. 1541(b) by the amount of benefits payable under
the RSFPP, if any, that the beneficiary receives from DoD and the
annual income for pension purposes.
VA will recompute the monthly minimum income annuity payment
whenever there is a change to the maximum annual rate of pension in
effect under 38 U.S.C. 1541(b) and whenever there is a change in the
beneficiary's income.
Since a beneficiary must be eligible for VA pension in order to be
entitled to the minimum income annuity, if the beneficiary's
eligibility to nonservice-connected death pension terminates for any
reason, VA will terminate the minimum income annuity effective the same
date.
We are making this document effective on July 1, 1997. The document
contains restatements of statute and interpretive rules which under the
provisions of 5 U.S.C. 553 are exempt from prior notice and public
comment and delayed effective date provisions.
The Secretary hereby certifies that this regulatory amendment 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. 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.
(The Catalog of Federal Domestic Assistance program number is
64.105.)
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Health care,
Individuals with disabilities, Pensions, Veterans.
Approved: June 4, 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. Section 3.811 is added to read as follows:
Sec. 3.811 Minimum income annuity.
(a) Eligibility. The minimum income annuity authorized by Pub. L.
92-425, as amended, is payable to a person:
(1) Who the Department of Defense has determined meets the
eligibility criteria of section 4(a) of Pub. L. 92-425, as amended,
other than section 4(a)(1) and (2); and
(2) Who is eligible for pension under subchapter III of chapter 15
of title 38, United States Code, or section 306 of the Veterans' and
Survivors' Pension Improvement Act of 1978; and
(3) Whose annual income, as determined in establishing pension
eligibility, is less than the maximum annual rate of pension in effect
under 38 U.S.C. 1541(b).
(b) Computation of the minimum income annuity payment.--(1) Annual
income. VA will determine a beneficiary's annual income for minimum
income annuity purposes under the provisions of Secs. 3.271 and 3.272
of this part for beneficiaries receiving improved pension, or under
Secs. 3.260 through 3.262 of this part for beneficiaries receiving old
law or section 306 pensions, except that the amount of the minimum
income annuity will be excluded from the calculation.
(2) VA will determine the minimum income annuity payment for
beneficiaries entitled to improved pension by subtracting the annual
income for minimum income annuity purposes from the maximum annual
pension rate under 38 U.S.C. 1541(b).
(3) VA will determine the minimum income annuity payment for
beneficiaries receiving old law and section 306 pensions by reducing
the maximum annual pension rate under 38 U.S.C. 1541(b) by the amount
of the Retired Servicemen's Family Protection Plan benefit, if any,
that the beneficiary receives and subtracting from that amount the
annual income for minimum income annuity purposes.
(4) VA will recompute the monthly minimum income annuity payment
whenever there is a change to the maximum annual rate of pension in
effect under 38 U.S.C. 1541(b) and whenever there is a change in the
beneficiary's income.
(c) An individual otherwise eligible for pension under subchapter
III of chapter 15 of title 38, United States Code, or section 306 of
the Veterans' and Survivors' Pension Improvement Act of 1978, shall be
considered eligible for pension for purposes of determining eligibility
for the minimum income
[[Page 35972]]
annuity even though as a result of adding the amount of the minimum
income annuity authorized under Pub. L. 92-425 as amended to any other
countable income, no amount of pension is due.
(d) Termination. Other than as provided in paragraph (c) of this
section, if a beneficiary receiving the minimum income annuity becomes
ineligible for pension, VA will terminate the minimum income annuity
effective the same date.
(Authority: Pub. L. 92-425 as amended (10 U.S.C. 1448 note);
Sec. 638, Pub. L. 104-201, 110 Stat. 2581)
[FR Doc. 97-17413 Filed 7-2-97; 8:45 am]
BILLING CODE 8320-01-P
