[Federal Register Volume 62, Number 25 (Thursday, February 6, 1997)]
[Rules and Regulations]
[Page 5528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2901]



[[Page 5528]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI47


Dependency and Income

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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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.


Sec. 3.272  [Amended]

    2. In Sec. 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]
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