5528 Federal Register / Vol. 62, No. 25 / Thursday, February 6, 1997 / Rules and Regulations

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AI47

Dependency and Income

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends

Department of Veterans Affairs (VA)

adjudication regulations to exclude

payments of accrued pension benefits

from countable income in determining

entitlement to VA improved death

pension benefits. This change is needed

to implement a decision of the United

States Court of Veterans Appeals. The

intended effect of this change is to bring

the regulations into conformance with

the decision of the Court.

EFFECTIVE DATE: This amendment is

effective November 29, 1994.

FOR FURTHER INFORMATION CONTACT:

Bradley Flohr, Consultant, Program

Management, Compensation and

Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 273–

7241.

SUPPLEMENTARY INFORMATION: Under

Title 38 United States Code, Chapter 15,

eligible veterans may be entitled to

nonservice-connected disability pension

benefits and eligible surviving spouses

and/or children may be entitled to

payment of nonservice-connected death

pension benefits subject to statutory

annual income limitations. In

determining annual income under

Chapter 15, all payments of any kind or

from any source are countable unless

specifically excluded by statute. 38

U.S.C. 1503(a)(2) specifically excludes

‘‘payments under this chapter,’’ i.e.,

Chapter 15, from countable income.

Under the provisions of 38 U.S.C.

5121, certain periodic monetary benefits

to which an individual was entitled at

death under existing ratings or

decisions, or based on evidence in file

at date of death, that are due and unpaid

for a period not to exceed two years

shall, upon the death of such

individual, be paid to certain

individuals as set forth in 5121(a).

The United States Court of Veterans

Appeals has held that, since accrued

benefits paid to a veteran’s surviving

spouse and/or child based on pension

benefits owed to a veteran at the time

of his or her death are derivative in

nature, they are no more than payments

of pension under 38 U.S.C. Chapter 15

that VA owed a veteran at the time of

death and are, therefore, excluded from

countable annual income for VA

improved death pension purposes. See

Martin v. Brown, 7 Vet. App. 196, 199–

200 (1994). The department is amending

38 CFR 3.272(c) to incorporate this

holding of the Court.

VA is issuing a final rule to

implement this decision of the Court.

Because this amendment is an

interpretive rule that reflects a decision

of the Court, publication as a proposal

for public notice and comment under

Title 5 U.S.C. 553, the Administrative

Procedures Act, is unnecessary.

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. 601–612). Even so, 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.

The Catalog of Federal Domestic

Assistance program numbers are 64.100,

64.101, 64.104, 64.105, 64.106, 64.109, and

64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and

procedure, Claims, Disability benefits,

Health care, Pensions, Veterans.

Approved: January 23, 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.

§ 3.272 [Amended]

2. In § 3.272, paragraph (c) is

amended by removing ‘‘Code.’’ and

adding, in its place, ‘‘Code, including

accrued pension benefits payable under

38 U.S.C. 5121.’’

[FR Doc. 97–2901 Filed 2–5–97; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 3

RIN 2900–AI36

Spouse and Surviving Spouse

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends

Department of Veterans Affairs (VA)

adjudication regulations to replace

gender-specific language with genderneutral language. The amendments are

necessary to conform the adjudication

regulations with the VA policy that all

of its publications will be stated in a

manner that does not seem to preclude

benefits for female veterans, dependents

or beneficiaries.

EFFECTIVE DATE: This amendment is

effective February 6, 1997.

FOR FURTHER INFORMATION CONTACT:Paul

Trowbridge, Consultant, Compensation

and Pension Service (213), Veterans

Benefits Administration, Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC 20420, telephone

(202) 273–7218.

SUPPLEMENTARY INFORMATION: It is our

policy that in any VA publication and

in any communications, words and

statements denoting gender shall avoid

any appearance of seeming to preclude

benefits for female veterans,

dependents, or beneficiaries. We believe

that the best way to do so is to use

gender-neutral terms such as ‘‘spouse’’

or ‘‘surviving spouse’’ rather than

gender-specific terms such as

‘‘husband,’’ ‘‘wife,’’ ‘‘widow,’’ or

‘‘widower.’’

This document deletes references

throughout 38 CFR part 3 to ‘‘wife,’’

‘‘husband,’’ ‘‘widow,’’ or ‘‘widower,’’

and replaces them with the terms

‘‘spouse’’ and ‘‘surviving spouse.’’ In 38

CFR 3.205(a)(6), ‘‘held themselves out as

married’’ has been substituted for ‘‘held

themselves out as husband and wife.’’

38 CFR 3.50 is revised to provide a new

definition of ‘‘spouse’’ and ‘‘surviving

spouse’’ to reflect statutory

requirements. Because of this change, it

is no longer necessary to define ‘‘wife’’

and ‘‘widow.’’ These terms are therefore

removed. 38 CFR 3.51 previously

provided that the term ‘‘wife’’ includes

the husband of a female veteran and the

term ‘‘widow’’ includes the widower of

a female veteran. Because we have

substituted gender-neutral terms such as

‘‘spouse’’ and ‘‘surviving spouse’’ for

terms such as ‘‘wife,’’ ‘‘husband,’’

‘‘widow,’’ or ‘‘widower’’ throughout the

adjudication regulations, 38 CFR 3.51 is

no longer necessary and we have

removed it.

Since these amendments make no

substantive change to the regulations,

the Secretary finds that notice and

public procedure thereon are

unnecessary. Accordingly, these

amendments are promulgated without