3388 Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Rules and Regulations

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AJ65

DIC Benefits for Survivors of Certain

Veterans Rated Totally Disabled at

Time of Death

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document establishes an

interpretive rule reflecting the

Department of Veterans Affairs (VA)

conclusion that 38 U.S.C. 1318(b)

authorizes payment of dependency and

indemnity compensation (DIC) only in

cases where the veteran had, during his

or her lifetime, established a right to

receive total service-connected

disability compensation from VA for the

period required by that statute or would

have established such a right if not for

clear and unmistakable error by VA.

This document also makes certain nonsubstantive changes.

DATES: Effective Date: Janaury 21, 2000.

FOR FURTHER INFORMATION CONTACT: Don

England, Senior Consultant, Regulations

Staff, Compensation and Pension

Service, Veterans Benefits

Administration, 810 Vermont Avenue,

NW., Washington, DC 20420, telephone

(202) 273–7210.

SUPPLEMENTARY INFORMATION: This

document establishes an interpretive

rule reflecting VA’s conclusion that 38

U.S.C. 1318(b) authorizes payment of

DIC only in cases where the veteran

had, during his or her lifetime,

established a right to receive total

service-connected disability

compensation from VA for the period

required by that statute or would have

established such a right if not for clear

and unmistakable error by VA.

I. History of 38 CFR 3.22

Under chapter 13 of title 38, United

States Code, VA is authorized to pay

DIC to certain survivors of veterans who

died as a result of service-connected

disability. In 1978, Congress enacted

Public Law 95–479, which authorized

VA to pay DIC to the survivors of a

veteran whose death was not caused by

service-connected disability, but who, at

the time of death, ‘‘was in receipt of (or

but for the receipt of retired or

retirement pay was entitled to receive)’’

compensation for a service-connected

disability rated 100 percent disabling for

10 years immediately preceding death,

or for a period of at least five years

extending from date of discharge from

service until date of death. That

provision was codified in 38 U.S.C.

410(b)(1). In 1979, VA issued 38 CFR

3.22 to implement the statute (44 FR

22716, 22718 (1979)).

A 1981 opinion by the VA General

Counsel (Op. G.C. 2–81) concluded that

38 U.S.C. 410(b)(1) did not permit a DIC

award to the survivors of a veteran who

was not actually in receipt of

compensation for a total disability for a

full ten years prior to death, but who

would have been in receipt of such

benefits if not for error by VA in a

decision rendered during the veteran’s

lifetime.

In 1982, Congress enacted Public Law

97–306, which amended 38 U.S.C.

410(b)(1) in response to the General

Counsel’s 1981 decision. The amended

statute, now codified at 38 U.S.C.

1318(b), authorizes payment of DIC in

cases where the veteran ‘‘was in receipt

of or entitled to receive (or but for the

receipt of retired or retirement pay was

entitled to receive)’’ compensation for a

service-connected disability rated

totally disabling for 10 years

immediately preceding death or a

period of five years from the date of

discharge. The legislative history stated

that the purpose of the amendment was

‘‘to provide that the requirement that

the veteran have been in receipt of

compensation for a service-connected

disability rated as total for a period of

10 years prior to death (or for 5 years

continuously from the date of discharge)

is met if the veteran would have been

in receipt of such compensation for

such period but for a clear and

unmistakable error regarding the award

of a total disability rating.’’ (Explanatory

Statement of Compromise Agreement,

128 Cong. Rec. H7777 (1982), reprinted

in 1982 U.S.C.C.A.N. 3012, 3013.)

In 1983, VA revised 38 CFR 3.22 to

state that DIC would be payable under

38 U.S.C. 410(b)(1) (now 38 U.S.C.

1318(b)) when the veteran ‘‘was in

receipt of or for any reason (including

receipt of military retired or retirement

pay or correction of a rating after the

veteran’s death based on clear and

unmistakable error) was not in receipt of

but would have been entitled to receive

compensation at the time of death’’ for

service-connected disability rated

totally disabling for 10 years prior to

death or five years continuously from

date of discharge to date of death (48 FR

41160, 41161 (1983)).

In Wingo v. West, 11 Vet. App. 307

(1998), the United States Court of

Appeals for Veterans Claims (CAVC)

(formerly United States Court of

Veterans Appeals) interpreted 38 CFR

3.22(a) as permitting a DIC award in a

case where the veteran had never

established entitlement to VA

compensation for a service-connected

total disability and had never filed a

claim for such benefits which could

have resulted in entitlement to

compensation for the required period.

The CAVC concluded that the language

of § 3.22(a) would permit a DIC award

where it is determined that the veteran

‘‘hypothetically’’ would have been

entitled to a total disability rating for the

required period if he or she had applied

for compensation during his or her

lifetime.

The CAVC’s interpretation of § 3.22(a)

does not accurately reflect VA’s intent

in issuing that regulation. Section 1318

of the statute authorizes DIC where the

veteran was ‘‘in receipt of or entitled to

receive’’ compensation for total serviceconnected disability for a specified

period preceding death. The statute

does not authorize VA to award DIC

benefits in cases where the veteran

merely had hypothetical, as opposed to

actual, entitlement to compensation. VA

does not have authority to provide by

regulation for payment of DIC in a

manner not authorized by 38 U.S.C.

1318. Section 3.22(a) is an interpretive

rule that was intended to explain the

requirements of 38 U.S.C. 1318, and not

to establish any substantive rights

beyond those authorized by section

1318. However, VA acknowledges that

the language of § 3.22(a) has apparently

caused confusion regarding VA’s

interpretation of 38 U.S.C. 1318.

Accordingly, VA is revising § 3.22(a) to

ensure that it clearly expresses VA’s

interpretation of section 1318.

II. Scope of This Rule

This document revises existing

paragraph (a) of 38 CFR 3.22 and

redesignates it as paragraphs (a) through

(d). VA is also redesignating existing

paragraphs (b) through (e) as new

paragraphs (e) through (h), respectively.

Paragraph (a), as revised, states that

even though a veteran died of nonservice-connected causes, VA will pay

benefits to the surviving spouse or

children in the same manner as if the

veteran’s death was service-connected

service connected if:

(1) the veteran’s own willful misconduct

did not cause his or her death, and (2) at the

time of death, the veteran was receiving, or

was entitled to receive, compensation for a

service-connected service connected

disability that was (i) rated by VA as totally

disabling for a continuous period of at least

10 years immediately preceding death, or (ii)

rated by VA as totally disabling continuously

since the veteran’s release from active duty

and for at least 5 years immediately

preceding death.

Paragraph (b), as revised, states that

the phrase ‘‘entitled to receive’’ means

Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Rules and Regulations 3389

that, at the time of death the veteran had

a service-connected disability rated by

VA as totally disabling, but was not

actually receiving compensation

because:

(1) VA was paying the compensation to the

veteran’s dependents; (2) VA was

withholding the compensation to offset an

indebtedness of the veteran; (3) the veteran

had not received total disability

compensation solely because of clear and

unmistakable error in a VA decision; (4) the

veteran had not waived retired or retirement

pay in order to receive compensation; (5) VA

was withholding payments under the

provisions of 10 U.S.C. § 1174(h)(2); (6) VA

was withholding payments because the

veteran’s whereabouts was unknown, but the

veteran was otherwise entitled to receive

continued payments based on a total serviceconnected disability rating; or (7) VA was

withholding payments under 38 U.S.C. 5308

but determines that benefits were payable

under 38 U.S.C. § 5309.

The revision reflects VA’s conclusion

that 38 U.S.C. 1318(b) authorizes

payment of DIC only in cases where the

veteran had, during his or her lifetime,

established a right to receive total

service-connected disability

compensation for the required period or

would have established such a right if

not for clear and unmistakable error by

VA. The basis for VA’s interpretation of

38 U.S.C. 1318(b) is set forth below.

III. Interpretation of 38 U.S.C. 1318

Section 1318 authorizes payment of

DIC in cases where the veteran was, at

the time of death, ‘‘in receipt of or

entitled to receive (or but for the receipt

of retired or retirement pay was entitled

to receive)’’ compensation for serviceconnected disability that ‘‘was

continuously rated totally disabling for

a period of 10 or more years

immediately preceding death’’ or was so

rated for 5 years continuously from date

of discharge to date of death. The phrase

‘‘in receipt of*** compensation’’

unambiguously refers to cases where the

veteran was, at the time of death,

actually receiving compensation for

service-connected disability rated

totally disabling for the required period.

VA has concluded that the phrase

‘‘entitled to receive * * * 

compensation’’ is most reasonably

interpreted as referring to cases where

the veteran had established a legal right

to receive compensation for the required

period under the laws and regulations

governing such entitlement, but was not

actually receiving the compensation.

Under 38 U.S.C. 5101, ‘‘a specific

claim in the form prescribed by the

Secretary*** must be filed in order

for benefits to be paid or furnished to

any individual under the laws

administered by the Secretary.’’ No

person can have a right to receive

compensation from VA in the absence of

a properly filed claim. (See Jones v.

West, 136 F.3d 1296, 1299–1300 (Fed.

Cir.), cert. denied, 119 S. Ct. 90 (1998)).

Section 5110(a) of title 38, United States

Code, provides that an award of

compensation may not be made

effective earlier than the date of the

claimant’s application, unless

specifically provided otherwise by

statute. Accordingly, a person cannot

have a right to receive compensation

from VA for any period prior to the date

of an application for benefits except as

expressly authorized by specific

statutory provision.

The legislative history of Public Law

97–306 indicates that the purpose of

adding the phrase ‘‘or entitled to

receive’’ to what is now 38 U.S.C. 1318

was to provide that DIC may be paid in

cases where the veteran would have

been in receipt of compensation for a

total service-connected disability for the

specified period prior to death if not for

a clear and unmistakable error by VA.

A ‘‘clear and unmistakable error’’ is an

error in a prior final VA decision which

materially affected the outcome of the

decision. Pursuant to law and

regulation, a decision containing a clear

and unmistakable error may be revised

retroactively, and entitlement to benefits

may be established retroactively as if the

error had not occurred (38 U.S.C. 5111,

7109A; 38 CFR 3.105(a)).

A retroactive award predicated on a

finding of clear and unmistakable error

is, like all awards of VA benefits, subject

to the requirement that the veteran have

filed a claim for benefits under 38

U.S.C. 5101(a). Further, the period of

the veteran’s retroactive entitlement is

governed by the effective-date

provisions of 38 U.S.C. 5110, and

generally may not be earlier than the

date of the veteran’s claim which

resulted in the erroneous decision. In

using the phrase ‘‘entitled to receive’’ to

refer to the specific class of cases where

the veteran’s entitlement was

established by correction of clear and

unmistakable error, Congress plainly

contemplated that determinations

concerning the existence and duration

of the veteran’s entitlement to benefits

would continue to be governed by the

requirements of 38 U.S.C. 5101(a) and

5110.

The legislative history also suggests

that final decisions concerning a

veteran’s disability rating and effective

date would be binding for purposes of

determinations under 38 U.S.C. 1318(b)

unless there was clear and unmistakable

error in such decisions. Sections 7104(b)

and 7105(c) of title 38, United States

Code provide that determinations of the

Board of Veterans’ Appeals and VA

regional offices, respectively, are final

unless a timely appeal is filed. Such

final decisions may be revised only on

the basis of clear and unmistakable

error. In providing that DIC benefits may

be awarded if there was clear and

unmistakable error in a prior final

decision which prevented the veteran

from receiving total disability

compensation for the specified period,

Congress plainly contemplated that the

prior final decision would continue to

be binding in the absence of clear and

unmistakable error. Accordingly, if a

regional office or the Board had

rendered a final decision which

establishes that the veteran was not

entitled to a total rating for at least ten

years immediately preceding death (or

at least five years from date of discharge

to date of death), such decision would

preclude VA from reaching a contrary

conclusion in adjudicating a claim for

DIC under 38 U.S.C. 1318(b).

In view of Congress’ clear intent, VA

has concluded that determinations

concerning the existence and duration

of the veteran’s entitlement to

compensation for a service-connected

disability rated totally disabling are

governed by the generally-applicable

provisions of 38 U.S.C. 5101(a), 5110,

7104(b), and 7105(c), governing claimfiling requirements, effective dates of

entitlement, and the finality of regionaloffice and Board decisions. Congress’

stated purpose to authorize DIC in cases

where clear and unmistakable error was

the only obstacle to the veteran’s receipt

of total disability compensation for the

required period fits logically within this

well-established statutory scheme.

In contrast, interpreting 38 U.S.C.

1318(b) as permitting DIC awards where

the veteran ‘‘hypothetically’’ could have

been entitled to benefits would create a

substantially broader rule which would

be inconsistent with the general

statutory requirements governing a

veteran’s entitlement to compensation.

VA has found no indication in section

1318(b) or its legislative history that

Congress intended VA to ignore those

established statutory requirements in

making determinations regarding the

veteran’s entitlement to compensation

for purposes of section 1318(b). To the

contrary, Congress indicated that the

purpose of the phrase ‘‘or entitled to

receive’’ was to authorize DIC awards in

a specific class of cases where the

veteran’s entitlement is established

under those generally-applicable

statutory requirements.

The language of 38 U.S.C. 1318(b) is

consistent with Congress’ stated

purpose. Section 1318(b) authorizes

3390 Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Rules and Regulations

payment of DIC in cases where the

veteran was entitled to receive

compensation for a service-connected

disability that ‘‘was continuously rated

totally disabling for a period of 10 or

more years immediately preceding

death.’’ The requirement that the

disability have been ‘‘continuously

rated’’ totally disabling for the specified

period is most reasonably construed as

referring to ratings which had actually

been assigned by VA for the duration of

that period in accordance with the

established statutory requirements

governing claims, ratings, and effective

dates. A contrary interpretation would

render the term ‘‘rated’’ wholly

unnecessary, for Congress could simply

have provided that DIC would be

payable based on a posthumous

determination that the veteran had a

service-connected disability that ‘‘was

continuously*** totally disabling

for a period of 10 or more years

immediately preceding death.’’

This interpretation of 38 U.S.C.

1318(b) is consistent with VA’s prior

interpretation of that provision. In a

1990 precedent opinion (VAOPGCPREC

68–90) which is binding on all VA

officials and employees, the VA General

Counsel examined the language and

history of section 1318(b) (previously

section 410(b)). The General Counsel

concluded that the legislative history

clearly indicated that Congress intended

to authorize DIC in cases where the

veteran had a total service-connected

disability rating for the specified period,

or would have had such a rating but for

clear and unmistakable error by VA. The

General Counsel concluded that VA

could not award DIC in cases where the

veteran did not have a total serviceconnected rating for the specified period

and there was no clear and

unmistakable error which could have

provided a basis for retroactively

assigning such a rating.

IV. The CAVC’s ‘‘Wingo’’ Decision

In Wingo, the CAVC did not expressly

discuss the meaning of 38 U.S.C. 1318

and did not analyze the language and

history of that provision. The CAVC

stated that 38 U.S.C. 1318 and 38 CFR

3.22(a) allow a claimant to establish

entitlement to DIC merely by showing

that the veteran hypothetically would

have been entitled to total serviceconnected disability compensation for

the required period if the veteran had

applied for such compensation. (11 Vet.

App. at 311.) The CAVC did not,

however, state that section 1318 alone

established such a right. Further, the

CAVC’s discussion indicates that its

conclusion was based primarily, if not

exclusively, on the language of § 3.22(a).

The CAVC reversed a determination by

the Board of Veterans’ Appeals that DIC

could not be paid under section 1318 in

a case where the veteran had not

applied for compensation during his

lifetime. In support of that conclusion,

the CAVC stated repeatedly that the

Board’s determination was inconsistent

with the language of § 3.22(a). (11 Vet.

App. at 311, 312.) Because the CAVC

did not expressly analyze the language

and history of section 1318, and because

its holding was predicated primarily on

the language of the regulation, it does

not appear that the CAVC has

concluded that section 1318 by its terms

requires VA to pay DIC in cases where

the veteran had no more than a

‘‘hypothetical’’ entitlement to total

disability compensation for the required

period.

The CAVC also did not expressly

address the issue of whether 38 CFR

3.22(a), as construed by that court, is a

valid exercise of VA’s rule-making

authority. Although the CAVC’s

interpretation of § 3.22(a) may be a

plausible construction of the language of

that regulation, the CAVC’s construction

creates a conflict between § 3.22(a) and

38 U.S.C. 1318 that is inconsistent with

VA’s authority, as well as with VA’s

intent. VA has no authority to provide

by regulation for the payment of DIC in

a manner not authorized by section

1318. Section 3.22(a) is an interpretive

rule, which was intended to explain the

requirements of the statute rather than

to establish new legal rights or

obligations beyond those provided by

statute. An interpretive rule is one

which merely clarifies or explains

existing statutes or regulations. (Animal

Legal Defense Fund v. Quigg, 932 F.2d

920, 927 (Fed. Cir. 1991).) In contrast, a

legislative, or substantive, rule is one

which effects a change in existing law

or policy which affects individual rights

and obligations. (Animal Legal Defense

Fund, 932 F.2d at 927.) A rule can be

legislative only if Congress has

delegated legislative power to an agency

with respect to a particular matter and

the agency intended to use that power

in promulgating the rule. (Schuler

Indus. v. United States, 109 F.3d 753,

755 (Fed. Cir. 1997); American Postal

Workers Union, AFL–CIO v. United

States Postal Serv., 707 F.2d 548, 558

(D.C. Cir. 1983), cert. denied, 465 U.S.

1100 (1984).)

38 U.S.C. 1318 authorizes VA to pay

DIC only in cases where a veteran had

an actual, rather than merely

hypothetical, right to receive

compensation for service-connected

disability rated by VA as totally

disabling for 10 years preceding death

or 5 years continuously from date of

discharge to date of death. Congress has

not delegated authority to VA to

establish legislative rules restricting or

expanding the class of persons eligible

for DIC under the statute, and VA did

not intend to exercise any such

authority in issuing or amending

§ 3.22(a).

In contrast to a legislative rule, an

interpretive rule can ‘‘create no law and

have no effect beyond that of the

statute.’’ (Pickus v. United States Board

of Parole, 507 F.2d 1107, 1113 (D.C. Cir.

1974).) Because 38 U.S.C. 1318 does not

authorize VA to pay DIC benefits in

cases where the veteran had no more

than ‘‘hypothetical’’ entitlement to the

underlying compensation, and because

Congress has not authorized VA to

establish legislative rules creating a

right to DIC in such cases, VA has no

authority to create such a right. In

Wingo, the CAVC concluded that the

language of 38 CFR 3.22(a) recognizes

such a right existing under section 1318,

but did not address VA’s authority to

recognize or establish such a right in

view of the language and purpose of the

statute and the principles governing the

effect of interpretive rules. Because

§ 3.22(a), as interpreted by the CAVC,

does not accurately reflect the

requirements of the statute and VA’s

intention in issuing that regulation, VA

has determined that it is necessary to

revise the regulation.

V. Definition of ‘‘Entitled To Receive’’

In order to clarify the requirements of

38 U.S.C. 1318, VA is revising 38 CFR

3.22 to expressly define the statutory

term ‘‘entitled to receive.’’ VA is

defining that term to refer to each

specific circumstance where a veteran

could have had a service-connected

disability rated totally disabling by VA

but may not have been receiving VA

compensation for such disability at the

time of death. Those circumstances are

as follows.

In certain circumstances, VA may pay

a veteran’s compensation directly to his

or her dependents. (See 38 U.S.C. 1158,

5307, 5308(c).) VA may also withhold a

veteran’s compensation in order to

offset the veteran’s indebtedness to the

United States arising out of

participation in a program administered

by VA. (See 38 U.S.C. 5314.) In such

cases, where the veteran’s compensation

is being applied to satisfy an obligation

of the veteran, VA believes that the

veteran may be considered to have been

entitled to receive compensation within

the meaning of 38 U.S.C. 1318.

There are other circumstances in

which a veteran who has established

entitlement to compensation for

disability rated totally disabling by VA

Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Rules and Regulations 3391

may not have been receiving payments

of compensation at the time of death. A

veteran will be considered to have been

entitled to receive compensation for

such disability at the time of death if he

or she had filed a claim and would have

received compensation for the required

period but for clear and unmistakable

error by VA. Additionally, a veteran will

be considered to have been entitled to

receive compensation if, at the time of

death, the veteran had a serviceconnected disability (or disabilities) that

was rated 100 percent disabling by VA

for the required period, but the veteran

was not receiving compensation because

he or she had not waived military

retired or retirement pay, or because VA

was withholding payments under

certain circumstances. Payments of

compensation may be withheld under

10 U.S.C. 1174(h)(2) to offset the

amount of certain payments to the

veteran from the Department of Defense.

It may also be necessary for VA to

withhold compensation if the veteran’s

whereabouts is unknown. Additionally,

under 38 U.S.C. 5308, VA may withhold

payments to aliens located in the

territory of an enemy of the United

States or any of its allies. A veteran is

entitled to receive payments withheld

under section 5308 if it is shown that

the veteran was not guilty of mutiny,

treason, sabotage, or rendering

assistance to an enemy of the United

States or its allies (38 U.S.C. 5309).

Accordingly, revised § 3.22(b) states that

the phrase ‘‘entitled to receive’’ refers to

veterans who were not receiving

payments at the time of death for one of

the reasons stated above.

This definition also reflects VA’s

conclusion that the language ‘‘rated

totally disabling’’ in 38 U.S.C. 1318

requires that the disability or disabilities

have been rated totally disabling by VA.

Section 1155 of title 38, United States

Code, requires the Secretary of Veterans

Affairs to ‘‘adopt and apply a schedule

of ratings of reductions in earning

capacity from specific injuries or

combinations of injuries.’’ Under this

authority, VA has created its Schedule

for Rating Disabilities (38 CFR Part 4).

Given the very specific requirements of

38 U.S.C. 1155 as well as 38 U.S.C.

1114, which establishes the rates of

compensation for the ten levels of

disability, including disabilities ‘‘rated

as total’’ (section 1114(j)), we believe

that the term ‘‘rated’’, as it is used in

section 1318, can only mean ‘‘rated by

VA’’.

VI. Other Changes

New paragraph (c) of § 3.22 is a

restatement of material previously

contained in paragraph (a). New

paragraph (c) provides that a rating

based on individual unemployability

under 38 CFR 4.16 qualifies as a

disability rated by VA as totally

disabling. New paragraph (d) of § 3.22

provides the criteria for being

considered a surviving spouse for

purposes of 38 U.S.C. 1318 and 38 CFR

3.22. These criteria are merely a

restatement of 38 U.S.C. 1318(c) and 38

CFR 3.54(c)(2). We are simultaneously

removing § 3.54(c)(2) as unnecessary.

New paragraphs (e) through (h) are

redesignations of former paragraphs (b)

through (e), respectively.

This document establishes

interpretive rules. It also restates

statutory provisions and makes other

nonsubstantive changes. Accordingly,

under the provisions of 5 U.S.C. 553, we

are dispensing with prior notice and

comment and with a 30-day delay of

effective date.

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

(RFA), 5 U.S.C. 601–612. The reason for

this certification is that this final rule

would not directly affect any small

entities. Only VA beneficiaries could be

directly affected. Therefore, pursuant to

5 U.S.C. 605(b), this final rule is exempt

from the initial and final regulatory

flexibility analyses requirements of

sections 603 and 604.

The Catalog of Federal Domestic

Assistance program number is 64.110.

List of Subjects

38 CFR Part 3

Administrative practice and

procedure, Claims, Disability benefits,

Health care, Pensions, Veterans,

Vietnam.

Approved: September 7, 1999.

Togo D. West, Jr.,

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 § 3.22, paragraphs (b) through (e)

are redesignated as paragraphs (e)

through (h), respectively; and the

section heading, paragraph (a) and

newly redesignated paragraph (f) are

revised; and new paragraphs (b) through

(d) are added, to read as follows:

§ 3.22 DIC benefits for survivors of certain

veterans rated totally disabled at time of

death.

(a) Even though a veteran died of nonservice-connected causes, VA will pay

death benefits to the surviving spouse or

children in the same manner as if the

veteran’s death were service-connected,

if:

(1) The veteran’s death was not the

result of his or her own willful

misconduct, and

(2) At the time of death, the veteran

was receiving, or was entitled to receive,

compensation for service-connected

disability that was:

(i) Rated by VA as totally disabling for

a continuous period of at least 10 years

immediately preceding death; or

(ii) Rated by VA as totally disabling

continuously since the veteran’s release

from active duty and for at least 5 years

immediately preceding death.

(b) For purposes of this section,

‘‘entitled to receive’’ means that at the

time of death, the veteran had serviceconnected disability rated totally

disabling by VA but was not receiving

compensation because:

(1) VA was paying the compensation

to the veteran’s dependents;

(2) VA was withholding the

compensation under authority of 38

U.S.C. 5314 to offset an indebtedness of

the veteran;

(3) The veteran had applied for

compensation but had not received total

disability compensation due solely to

clear and unmistakable error in a VA

decision concerning the issue of service

connection, disability evaluation, or

effective date;

(4) The veteran had not waived retired

or retirement pay in order to receive

compensation;

(5) VA was withholding payments

under the provisions of 10 U.S.C.

1174(h)(2);

(6) VA was withholding payments

because the veteran’s whereabouts was

unknown, but the veteran was otherwise

entitled to continued payments based

on a total service-connected disability

rating; or

(7) VA was withholding payments

under 38 U.S.C. 5308 but determines

that benefits were payable under 38

U.S.C. 5309.

(c) For purposes of this section, ‘‘rated

by VA as totally disabling’’ includes

total disability ratings based on

unemployability (§ 4.16 of this chapter).

(d) To be entitled to benefits under

this section, a surviving spouse must

have been married to the veteran—

3392 Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Rules and Regulations

(1) For at least 1 year immediately

preceding the date of the veteran’s

death; or

(2) For any period of time if a child

was born of the marriage, or was born

to them before the marriage.

(Authority: 38 U.S.C. 1318)

* * * * *

(f) Social security and worker’s

compensation. Benefits received under

social security or worker’s

compensation are not subject to

recoupment under paragraph (e) of this

section even though such benefits may

have been awarded pursuant to a

judicial proceeding.

* * * * *

§ 3.54 [Amended]

3. In § 3.54, paragraph (c)(2) and its

authority citation are removed, and

paragraphs (c)(1), (c)(1)(i), (c)(1)(ii), and

(c)(1)(iii) are redesignated as paragraphs

(c), (c)(1), (c)(2), and (c)(3), respectively.

[FR Doc. 00–1507 Filed 1–20–00; 8:45 am]

BILLING CODE 8320–01–P

GENERAL SERVICES

ADMINISTRATION

41 CFR Chapter 301

[FTR Amendment 87]

RIN 3090–AH18

Federal Travel Regulation; Maximum

Per Diem Rates and Other Travel

Allowances

AGENCY: Office of Governmentwide

Policy, GSA.

ACTION: Final rule; correction.

SUMMARY: This document corrects

entries listed in the prescribed

maximum per diem rates for locations

within the continental United States

(CONUS), and footnote 4, contained in

a final rule appearing in Part III of the

Federal Register of Thursday, December

2, 1999 (64 FR 67670). The rule, among

other things, increased/decreased the

maximum lodging amounts in certain

existing per diem localities, added new

per diem localities, and removed a

number of previously designated per

diem localities.

EFFECTIVE DATE: January 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Joddy P. Garner, Office of

Governmentwide Policy (MTT),

Washington, DC 20405, telephone 202–

501–4857.

SUPPLEMENTARY INFORMATION: In rule

document 99–31215 beginning on page

67670 in the issue of Thursday,

December 2, 1999, make the following

corrections:

Appendix A to Chapter 301 [Corrected]

1. On page 67678, under the State of

Louisiana, in the 31st line from the

bottom under the entry New Orleans/

Plaquemine/St. Bernard, column two is

corrected to remove the word ‘‘New’’.

2. On page 67679, under the State of

Maryland, in the 15th line from the top

under the entry Lexington Park/

Leonardtown/Lusby, column two is

corrected to remove the apostrophe and

to add ‘‘and Calvert’’.

3. On page 67679, under the State of

Michigan, in the 11th line from the

bottom under the entry Auburn, column

two is corrected to read ‘‘Bay (except

Auburn Hills, see Oakland and City

limits of Auburn Hills)’’.

4. On page 67680, under the State of

Michigan, in the 24th line from the

bottom under the entry Pontiac/Troy/

Auburn Hills, column two is corrected

to read ‘‘Oakland and City limits of

Auburn Hills (see Bay County)’’.

5. On page 67683, under the State of

Ohio, in the fifth line from the bottom

under the entry Cincinnati, column two

is corrected to read ‘‘Hamilton and

Warren’’.

6. On page 67684, under the State of

Pennsylvania, in the ninth line from the

bottom under the entry King Prussia/Ft.

Washington/Bala Cynwyd, column one

is corrected to read ‘‘King of Prussia/Ft.

Washington/Bala Cynwyd’’, and column

two is corrected to add the county

‘‘Montgomery’’.

7. On page 67688, footnote 4 is

corrected to include missing text and is

set out in its entirety for the ease of the

reader. The corrected text should read

as follows:

Appendix A to Chapter 301—Prescribed Maximum Per Diem Rates for CONUS

* * * * *

Per diem locality: Key city 1 County and/or other defined

location 2 3

Maximum lodging

amount (room rate

only—no taxes)

+ M&IE rate = Maximum per

diem rate 4

(a) (b) (c)

*******

LOUISIANA

*******

New Orleans/Plaquemine/St. Bernard .............................. Orleans, Iberville and St.

Bernard.

88 42 130

*******

MARYLAND

*******

Lexington Park/Leonardtown/Lusby .................................. St. Marys and Calvert ......... 66 34 100

*******

MICHIGAN

*******

Auburn ............................................................................... Bay (except Auburn Hills,

see Oakland and City limits of Auburn Hills).

59 38 97