Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72211 

TABLE 5.—MORTALITY TABLE FOR SOCIAL SECURITY DISABLED MALE

PARTICIPANTS—Continued 

Age x qX

45 .............................................. 0.043033 

46 .............................................. 0.044007 

47 .............................................. 0.044993 

48 .............................................. 0.045989 

49 .............................................. 0.046993 

50 .............................................. 0.048004 

51 .............................................. 0.049021 

52 .............................................. 0.050042 

53 .............................................. 0.051067 

54 .............................................. 0.052093 

55 .............................................. 0.053120 

56 .............................................. 0.054144 

57 .............................................. 0.055089 

58 .............................................. 0.056068 

59 .............................................. 0.057080 

60 .............................................. 0.058118 

61 .............................................. 0.059172 

62 .............................................. 0.060232 

63 .............................................. 0.061303 

64 .............................................. 0.062429 

65 .............................................. 0.063669 

66 .............................................. 0.065082 

67 .............................................. 0.066724 

68 .............................................. 0.068642 

69 .............................................. 0.070834 

70 .............................................. 0.073284 

71 .............................................. 0.075979 

72 .............................................. 0.078903 

73 .............................................. 0.082070 

74 .............................................. 0.085606 

75 .............................................. 0.088918 

76 .............................................. 0.092208 

77 .............................................. 0.095625 

78 .............................................. 0.099216 

79 .............................................. 0.103030 

80 .............................................. 0.107113 

81 .............................................. 0.111515 

82 .............................................. 0.116283 

83 .............................................. 0.121464 

84 .............................................. 0.127108 

85 .............................................. 0.133262 

86 .............................................. 0.139974 

87 .............................................. 0.147292 

88 .............................................. 0.155265 

89 .............................................. 0.163939 

90 .............................................. 0.173363 

91 .............................................. 0.183585 

92 .............................................. 0.194653 

93 .............................................. 0.206615 

94 .............................................. 0.219519 

95 .............................................. 0.234086 

96 .............................................. 0.248436 

97 .............................................. 0.263954 

98 .............................................. 0.280803 

99 .............................................. 0.299154 

100 ............................................ 0.319185 

101 ............................................ 0.341086 

102 ............................................ 0.365052 

103 ............................................ 0.393102 

104 ............................................ 0.427255 

105 ............................................ 0.469531 

106 ............................................ 0.521945 

107 ............................................ 0.586518 

108 ............................................ 0.665268 

109 ............................................ 0.760215 

110 ............................................ 1.000000 

TABLE 6.—MORTALITY TABLE FOR SOCIAL SECURITY DISABLED FEMALE

PARTICIPANTS

Age x qX

15 .............................................. 0.007777 

16 .............................................. 0.008120 

17 .............................................. 0.008476 

18 .............................................. 0.008852 

19 .............................................. 0.009243 

20 .............................................. 0.009650 

21 .............................................. 0.010076 

22 .............................................. 0.010521 

23 .............................................. 0.010984 

24 .............................................. 0.011468 

25 .............................................. 0.011974 

26 .............................................. 0.012502 

27 .............................................. 0.013057 

28 .............................................. 0.013632 

29 .............................................. 0.014229 

30 .............................................. 0.014843 

31 .............................................. 0.015473 

32 .............................................. 0.016103 

33 .............................................. 0.016604 

34 .............................................. 0.017121 

35 .............................................. 0.017654 

36 .............................................. 0.018204 

37 .............................................. 0.018770 

38 .............................................. 0.019355 

39 .............................................. 0.019957 

40 .............................................. 0.020579 

41 .............................................. 0.021219 

42 .............................................. 0.021880 

43 .............................................. 0.022561 

44 .............................................. 0.023263 

45 .............................................. 0.023988 

46 .............................................. 0.024734 

47 .............................................. 0.025504 

48 .............................................. 0.026298 

49 .............................................. 0.027117 

50 .............................................. 0.027961 

51 .............................................. 0.028832 

52 .............................................. 0.029730 

53 .............................................. 0.030655 

54 .............................................. 0.031609 

55 .............................................. 0.032594 

56 .............................................. 0.033608 

57 .............................................. 0.034655 

58 .............................................. 0.035733 

59 .............................................. 0.036846 

60 .............................................. 0.037993 

61 .............................................. 0.039176 

62 .............................................. 0.040395 

63 .............................................. 0.041653 

64 .............................................. 0.042950 

65 .............................................. 0.044287 

66 .............................................. 0.045666 

67 .............................................. 0.046828 

68 .............................................. 0.048070 

69 .............................................. 0.049584 

70 .............................................. 0.051331 

71 .............................................. 0.053268 

72 .............................................. 0.055356 

73 .............................................. 0.057573 

74 .............................................. 0.059979 

75 .............................................. 0.062574 

76 .............................................. 0.065480 

77 .............................................. 0.068690 

78 .............................................. 0.072237 

79 .............................................. 0.076156 

80 .............................................. 0.080480 

81 .............................................. 0.085243 

82 .............................................. 0.090480 

83 .............................................. 0.096224 

84 .............................................. 0.102508 

TABLE 6.—MORTALITY TABLE FOR SOCIAL SECURITY DISABLED FEMALE

PARTICIPANTS—Continued 

Age x qX

85 .............................................. 0.109368 

86 .............................................. 0.116837 

87 .............................................. 0.124948 

88 .............................................. 0.133736 

89 .............................................. 0.143234 

90 .............................................. 0.153477 

91 .............................................. 0.164498 

92 .............................................. 0.176332 

93 .............................................. 0.189011 

94 .............................................. 0.202571 

95 .............................................. 0.217045 

96 .............................................. 0.232467 

97 .............................................. 0.248870 

98 .............................................. 0.266289 

99 .............................................. 0.284758 

100 ............................................ 0.303433 

101 ............................................ 0.327385 

102 ............................................ 0.359020 

103 ............................................ 0.395842 

104 ............................................ 0.438360 

105 ............................................ 0.487816 

106 ............................................ 0.545886 

107 ............................................ 0.614309 

108 ............................................ 0.694884 

109 ............................................ 0.789474 

110 ............................................ 1.000000 

Issued in Washington, DC, this 29 day of 

November, 2005. 

Elaine L. Chao, 

Chairman, Board of Directors, Pension Benefit 

Guaranty Corporation. 

Issued on the date set forth above pursuant 

to a resolution of the Board of Directors 

authorizing its Chairman to issue this final 

rule. 

Judith R. Starr, 

Secretary, Board of Directors, Pension Benefit 

Guaranty Corporation. 

[FR Doc. 05–23554 Filed 12–1–05; 8:45 am] 

BILLING CODE 7708–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 3 and 20 

RIN 2900–AL86 

Dependency and Indemnity 

Compensation: Surviving Spouse’s 

Rate; Payments Based on Veteran’s 

Entitlement to Compensation for 

Service-Connected Disability Rated 

Totally Disabling for Specified Periods 

Prior to Death 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is amending its 

adjudication regulations concerning 

payment of dependency and indemnity 

compensation (DIC) for certain nonVerDate Aug<31>2005 14:17 Dec 01, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\02DER1.SGM 02DER1
72212 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

service-connected deaths and the rate of 

DIC payable to a surviving spouse for 

either service-connected or non-serviceconnected deaths. The purpose of this 

final rule is to clarify VA’s 

interpretation of two similar statutes 

that provide for payments to the 

survivors of veterans who were, at the 

time of death, in receipt of or entitled 

to receive disability compensation for 

service-connected disability that was 

rated totally disabling for a specified 

period prior to death. This rule also 

reorganizes and revises the regulations 

governing surviving spouses’ DIC rates 

and revises the Board of Veterans’

Appeals rule concerning the effect of 

unfavorable decisions during a veteran’s 

lifetime on claims for death benefits by 

the veteran’s survivors. 

DATES: Effective Date: This rule is 

effective December 2, 2005. 

Applicability Date: VA will apply this 

rule to claims pending before VA on the 

effective date of this rule, as well as to 

claims filed after that date. 

FOR FURTHER INFORMATION CONTACT: 

Maya Ferrandino, Consultant, 

Compensation and Pension Service, 

Policy and Regulations Staff, Veterans 

Benefits Administration, 810 Vermont 

Avenue, NW., Washington, DC 20420 

(202) 273–7211. 

SUPPLEMENTARY INFORMATION: 

Background 

In the Federal Register of October 25, 

2004 (69 FR 62229), VA proposed to 

revise its DIC regulations to clarify and 

harmonize VA’s interpretation of two 

statutory provisions. We further 

proposed to reorganize and restate 

existing regulations to make them easier 

to understand and apply. 

DIC is a benefit paid to survivors of 

veterans in cases of death due to 

service-connected disability or certain 

cases of death due to non-serviceconnected disability. Section 1318(b) of 

title 38, United States Code, provides in 

effect that, if the veteran’s death is not 

caused by a service-connected 

disability, DIC is payable only if the 

veteran was in receipt of or ‘‘entitled to 

receive’’ compensation at the time of 

death for a service-connected disability 

that was continuously rated totally 

disabling for a period of 10 or more 

years immediately preceding death, or 

for a period of not less than five years 

from the date of the veteran’s discharge 

or release from active duty, or for a 

period of not less than one year 

immediately preceding death if the 

veteran was a former prisoner of war. 

VA has implemented this provision 

through regulations at 38 CFR 3.22, 

paragraph (b) of which explains that the 

phrase ‘‘entitled to receive’’ refers to 

circumstances in which the veteran, at 

the time of his or her death, had serviceconnected disability that was rated 

totally disabling by VA, but was not 

receiving compensation for one of seven 

specified reasons, including the fact that 

the veteran had applied for 

compensation during his or her lifetime 

but had not received total disability 

compensation due to a clear and 

unmistakable error (CUE) in a VA 

decision. 

We proposed to revise § 3.22(b) in two 

respects. First, we proposed to revise 

ambiguous language in § 3.22(b) to 

clarify that the correction of CUE may 

establish that a veteran was ‘‘entitled to 

receive’’ benefits ‘‘at the time of death’’

irrespective of whether the CUE is 

corrected before or after the veteran’s 

death. We explained that the statutory 

requirement that the veteran have been 

entitled to benefits ‘‘at the time of 

death’’ would be satisfied in such cases 

because 38 U.S.C. 5109A and 7111 

mandate that decisions correcting CUE 

must be given full retroactive effect as 

a matter of law. 

Second, we proposed to add an eighth 

circumstance in which a veteran may be 

found to have been ‘‘entitled to receive’’

compensation at the time of death for a 

disability that was continuously rated 

totally disabling for the specified period 

preceding death. We proposed to state 

that service department records that 

existed at the time of a prior final VA 

decision but were not previously 

considered by VA (hereinafter 

referenced as ‘‘newly identified service 

department records’’) may support a 

finding that the veteran was ‘‘entitled to 

receive’’ compensation at the time of 

death for a disability that was rated 

totally disabling for the specified 

period. We explained that the proposed 

rule would apply to such service 

department records received by VA 

before or after a veteran’s death, if the 

records established a basis for assigning 

a total disability rating for the 

retroactive period specified in 38 U.S.C. 

1318(b). We stated that, similar to 

awards based on correction of CUE, 

awards based on such newly identified 

service department records may be 

made retroactive as a matter of law, as 

provided in long-standing VA 

regulations at 38 CFR 3.156(c) and 

3.400(q)(2). 

Under section 1311(a)(2) of title 38, 

United States Code, if a veteran’s 

survivor is entitled to DIC based on 

either service-connected or non-serviceconnected death, the basic monthly rate 

of DIC payable to the survivor may be 

increased by a specified amount if the 

veteran at the time of death was in 

receipt of or was ‘‘entitled to receive’’

compensation for a service-connected 

disability that was rated totally 

disabling for a continuous period of at 

least eight years immediately preceding 

death. VA previously implemented this 

provision through regulations in 38 CFR 

3.5(e)(1). Unlike § 3.22, however, 

§ 3.5(e)(1) did not define or elaborate 

upon the phrase ‘‘entitled to receive.’’

In view of the substantially similar 

language and common derivation of 38 

U.S.C. 1311(a)(2) and 1318(b), VA has 

concluded that the statutes should be 

given a similar construction, and the 

United States Court of Appeals for the 

Federal Circuit (Federal Circuit) upheld 

that determination in National 

Organization of Veterans’ Advocates, 

Inc. v. Secretary of Veterans Affairs, 314 

F.3d 1373, 1378 (Fed. Cir. 2003) 

(‘‘NOVA’’). In its NOVA decision, 

however, the Federal Circuit criticized 

VA for not elaborating the meaning of 

the phrase ‘‘entitled to receive’’ in 

§ 3.5(e)(1), as VA had done in § 3.22. 

NOVA at 1381. The court ordered VA to 

undertake further rulemaking to 

harmonize those regulations. 

In our October 2004 proposed rule, 

we proposed to remove the provisions 

in 38 CFR 3.5(e) and to replace them 

with new 38 CFR 3.10. We proposed to 

reorganize and restate more clearly in 

new § 3.10 several provisions specifying 

the amounts of DIC payable to surviving 

spouses of veterans. We also proposed 

to include in new § 3.10(f)(3) a 

definition of the phrase ‘‘entitled to 

receive’’ that would parallel the 

definition set forth in § 3.22(b), as 

revised by this rule. 

VA also proposed to revise 38 CFR 

20.1106, which provides generally that 

claims for death benefits by a veteran’s 

survivor will be decided without regard 

to decisions rendered during the 

veteran’s lifetime. The rule historically 

has contained an express exception for 

claims under section 1318, but not for 

claims under section 1311. To ensure 

that those two statutes are applied 

consistently, we proposed to revise 

§ 20.1106 to exempt claims under either 

section 1311 or 1318. 

Finally, the Federal Circuit’s order in 

NOVA directed VA to address, in this 

rule, whether a survivor may establish 

entitlement to DIC under 38 U.S.C. 

1311(a)(2) and 1318 by submitting new 

and material evidence after a veteran’s 

death in order to reopen a claim filed by 

the veteran during his or her lifetime. 

NOVA at 1380–1381. The Federal 

Circuit stated that VA’s current 

regulation at 38 CFR 3.22 reasonably 

recognizes the correction of CUE as a 

basis for revisiting final decisions made 

during a veteran’s lifetime and 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72213 

satisfying the durational disability 

requirement in 38 U.S.C. 1318(b). 

NOVA at 1380–1381. However, the 

court stated that the correction of CUE 

is only one of the two statutory bases for 

revisiting final decisions, and that VA 

had failed to explain whether the 

durational disability requirements could 

be met under the other exception, which 

involves the submission of new and 

material evidence to reopen a 

previously denied claim. NOVA at 

1380–1381. 

Our notice of proposed rulemaking 

explained that the submission of new 

and material evidence (other than newly 

identified service department records) 

after a veteran’s death could not 

establish that the veteran was ‘‘entitled 

to receive’’ benefits for any past period. 

We explained that there were 

fundamental differences between the 

two statutory exceptions to finality and 

that those distinctions were significant 

in the context of claims under 38 U.S.C. 

1311(a)(2) and 1318(b), which depend 

upon whether a veteran was ‘‘entitled to 

receive’’ benefits for past periods. The 

correction of CUE is a remedy for error 

committed by VA in a prior final 

decision. By statute, a decision 

correcting CUE has full retroactive effect 

irrespective of when the CUE claim is 

brought. Accordingly, a CUE claim 

brought after a veteran’s death may 

establish that the veteran was entitled as 

a matter of law to have received benefits 

during his or her lifetime. 

In contrast, a reopening based on new 

and material evidence (other than newly 

identified service department records) is 

not a retroactive correction of a prior 

final decision, but is instead a means for 

establishing prospective entitlement to 

benefits despite a prior final denial. 

Pursuant to 38 U.S.C. 5110(a), the 

effective date of an award based on a 

reopened claim ‘‘shall not be earlier 

than the date of receipt of application 

therefore.’’ Accordingly, the Federal 

Circuit has held that VA regulations 

reasonably provide that reopening with 

new and material evidence of a 

previously denied claim generally may 

not operate retroactively. See Sears v. 

Principi, 349 F.3d 1326, 1330 (Fed. Cir. 

2003), cert. denied, 124 S. Ct. 1723 

(2004). The United States Court of 

Appeals for Veterans Claims (CAVC) has 

explained that a reopening ‘‘is not a 

reactivation of the previous claim, based 

upon the original application for 

benefits’’ and that ‘‘even upon a 

reopening, the prior claim is still ‘final’

in a sense’’ because any award based on 

the reopening can be effective no earlier 

than the date of the application to 

reopen. Spencer v. Brown, 4 Vet. App. 

283, 293 (1993), aff’d, 17 F.3d 368 (Fed. 

Cir. 1994). Accordingly, even if new and 

material evidence could show as a 

factual matter that any veteran was 

totally disabled due to serviceconnected disability during prior 

periods, such evidence could not 

establish that the veteran was entitled to 

receive benefits from VA for such past 

periods. 

We concluded that, because awards 

based on new and material evidence 

generally cannot establish retroactive 

entitlement to benefits, a survivor 

seeking DIC under section 1311(a)(2) or 

1318(b) generally cannot rely upon new 

and material evidence for the purpose of 

showing that a veteran was ‘‘entitled to 

receive’’ VA compensation for past 

periods. As noted above, the only 

exception to this general principle 

relates to circumstances in which newly 

identified service department records 

are submitted after a claim was finally 

denied. Because long-standing VA 

regulations authorize retroactive benefit 

entitlement based on such service 

department records, the proposed rule 

explained that new service department 

records submitted after a veteran’s death 

may show that the veteran was ‘‘entitled 

to receive’’ total disability compensation 

for periods prior to death. 

Although the Federal Circuit’s NOVA 

decision refers to the possibility of a DIC 

claimant ‘‘reopening’’ a deceased 

veteran’s claim based on either CUE or 

new and material evidence, we note that 

a survivor’s DIC claim is not actually a 

‘‘reopening’’ of the decedent’s claim for 

disability compensation because a 

veteran’s claim does not survive his or 

her death. See Richard v. West, 161 F.3d 

719, 721–22 (Fed. Cir. 1998). Rather, the 

survivor’s claim is a new and distinct 

claim that the survivor is entitled to DIC 

in his or her own right based on a 

showing that the veteran was ‘‘entitled 

to receive’’ certain benefits during the 

veteran’s lifetime. Thus the fact that 

CUE and new and material evidence 

both provide grounds on which the 

veteran could have ‘‘reopened’’ or 

otherwise revisited a previously denied 

claim during his or her lifetime does 

not, in itself, provide any basis for 

applying those remedies to a survivor’s 

DIC claim. Rather, the conclusion that a 

showing of CUE could establish a 

survivor’s entitlement to DIC is based on 

factors unique to CUE. First, because 

CUE may be corrected retroactively, a 

showing of CUE may bear directly upon 

the issue of whether a veteran was truly 

‘‘entitled to receive’’ benefits that were 

wrongly denied due to VA error during 

his or her lifetime. Second, the 

legislative history of 38 U.S.C. 1318 

clearly expressed Congress’ intent that 

‘‘the existence of clear and unmistakable 

VA administrative error would be a 

basis for entitlement to DIC benefits 

when such administrative error is the 

only bar to entitlement otherwise.’’ S. 

Rep. No. 97–550, at 17 (1982), reprinted 

in 1982 U.S.C.C.A.N. 2877, 2880. 

Neither of those considerations applies 

to the submission of new and material 

evidence. 

Analysis of Public Comments 

We received comments from the 

Paralyzed Veterans of America (PVA) 

and the National Organization of 

Veterans’ Advocates, Inc. (NOVA), both 

of which were parties to the abovereferenced NOVA litigation. NOVA 

suggested a change to the terminology 

used in proposed 38 CFR 3.10(c)–(f) to 

describe the benefits authorized by 38 

U.S.C. 1311(a)(2). The remaining 

comments from PVA and NOVA all 

relate to the issue of whether DIC 

claimants may rely on new and material 

evidence other than newly identified 

service department records to show that 

the veteran was ‘‘entitled to receive’’

total disability compensation for the 

specified statutory period. We address 

these comments below. 

I. Terminology in § 3.10(c)–(f) 

We proposed to state in 38 CFR 

3.10(a) that the rate of DIC payable to a 

surviving spouse would consist of a 

basic monthly rate and any applicable 

increases specified in § 3.10(c) and (e). 

We proposed, in § 3.10(c), (d), (e), and 

(f), to describe the additional DIC 

amount payable under 38 U.S.C. 

1311(a)(2) as the ‘‘veteran’s 

compensation increase’’ because the 

survivor’s eligibility for that increase 

was conditioned upon the veteran’s 

entitlement to compensation during his 

or her lifetime. NOVA states that the 

term ‘‘veteran’s compensation increase’’

is misleading because the increase is 

payable to the surviving spouse rather 

than the veteran and suggests that we 

change the term to ‘‘surviving spouse’s 

compensation increase.’’ We note that 

the provisions of proposed § 3.10(a) and 

(c) make clear that the increase pertains 

solely to the rate of DIC payable to a 

surviving spouse and does not authorize 

any payment to a deceased veteran. 

Nevertheless, we are changing the 

proposed term ‘‘veteran’s compensation 

increase’’ to the more specific term 

‘‘section 1311(a)(2) increase.’’ We do not 

believe that the term suggested by 

NOVA (‘‘surviving spouse’s 

compensation increase’’) is sufficiently 

specific, because § 3.10(e) refers to other 

increases that are also payable to 

surviving spouses as dependency and 

indemnity compensation. 

72214 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

II. New and Material Evidence 

NOVA and PVA both assert that 

survivors seeking DIC under sections 

1311(a)(2) and 1318(b) should be 

allowed to submit new and material 

evidence after a veteran’s death for the 

purpose of establishing that the veteran 

was, at the time of death, ‘‘entitled to 

receive’’ disability compensation for a 

disability that was rated totally 

disabling for the specified statutory 

period immediately preceding the 

veteran’s death. NOVA and PVA both 

argue that the proposed rules are 

arbitrary insofar as they allow claimants 

to rely upon newly identified service 

department records but not on other 

types of new evidence submitted after a 

veteran’s death. The organizations 

present a number of specific arguments 

in support of this assertion, which we 

address below. 

A. Interpretation of ‘‘Entitled To 

Receive’’

Although not expressly stated in the 

comments, it appears that each of the 

comments from PVA and NOVA rest 

upon a disagreement with VA 

concerning the meaning of the phrase 

‘‘entitled to receive’’ as it is used in 38 

U.S.C. 1311(a)(2) and 1318(b). Because 

we believe the interpretation of that 

statutory phrase is relevant to all of the 

comments, we address that issue as a 

preliminary matter, even though it is not 

expressly discussed in the comments. 

The statutory requirement that the 

veteran have been ‘‘entitled to receive’’

certain benefits at the time of death is 

ambiguous, and two possible 

interpretations of that language have 

been suggested. It may be construed to 

mean that the veteran had a legal right 

to the specified benefits and that VA 

had authority to grant such benefits to 

the veteran under the statutes and 

regulations giving VA authority to 

award benefits for the period required 

by sections 1311(a)(2) and 1318(b). This 

has been VA’s consistent interpretation 

of the statute. However, in a series of 

decisions finding ambiguity in prior VA 

regulations implementing section 

1318(b), the CAVC suggested that the 

phrase ‘‘entitled to receive’’ may also be 

construed to mean that the veteran was 

‘‘hypothetically’’ entitled to have 

received total disability compensation 

for the period required by sections 

1311(a)(2) and 1318(b), irrespective of 

whether the claimant had satisfied the 

statutory requirements necessary to 

actually obtain such benefits, such as 

the requirements pertaining to the filing 

of applications and those specifying the 

effective dates of awards based on such 

applications. See Wingo v. West, 11 Vet. 

App. 307, 311 (1998). Under this 

interpretation, a survivor would be 

required to submit evidence showing 

that the veteran was totally disabled due 

to a service-connected disease for the 

period specified in section 1311(a)(2) or 

section 1318(b), but would not need to 

establish that the veteran had any legal 

right to compensation for the disability 

for that period or that VA had any legal 

authority to pay such benefits to the 

claimant under the statutes governing 

VA’s authority to pay benefits. The two 

commenters have advocated the latter 

interpretation in the NOVA litigation 

and their comments on this rule appear 

to be predicated upon that 

interpretation. 

The distinction between the two 

interpretations is significant because, 

with the exception of newly identified 

service department records, new and 

material evidence submitted after a 

veteran’s death could not establish that 

the veteran had a legal right to receive 

total disability compensation for a 

retroactive period preceding the 

veteran’s death or that VA had authority 

to pay such benefits to the veteran for 

that retroactive period. This is a 

function of the finality of VA decisions, 

the limited nature of reopenings based 

on new and material evidence, and the 

corresponding limitations on VA’s 

authority to grant benefits in such 

reopened claims. As a general matter, 

once VA denies a claim, the decision is 

final and VA cannot thereafter consider 

the claim or award benefits except as 

otherwise provided by law. See 38 

U.S.C. 7104(b), 7105(c). Congress has 

established two exceptions to this 

finality. One exception permits VA to 

correct CUE in a prior final decision and 

to award benefits retroactive to the date 

of the prior claim. See 38 U.S.C. 5109A, 

7111. The other exception permits VA 

to reopen a previously denied claim 

when new and material evidence is 

received. See 38 U.S.C. 5108. However, 

Congress has provided that an award 

based on a reopened claim may be 

effective no earlier than the date VA 

received the claim for reopening. See 38 

U.S.C. 5110(a). Accordingly, except 

with respect to newly identified service 

department records, new and material 

evidence submitted after a veteran’s 

death could not show that a veteran had 

any legal right to benefits for periods 

prior to death. The commenters’

assertion that DIC claimants may rely 

upon new and material evidence to 

establish that a veteran was ‘‘entitled to 

receive’’ benefits for past periods 

necessarily reflects the view that the 

phrase ‘‘entitled to receive’’ means 

hypothetical entitlement rather than 

entitlement under applicable statutory 

and regulatory provisions. 

As stated in the notice of proposed 

rulemaking, as well as in several prior 

rulemaking documents published in the 

Federal Register (67 FR 16309 (2002); 

66 FR 65861 (2001); 65 FR 3388 (2000)), 

the phrase ‘‘entitled to receive’’ is most 

reasonably construed to mean that the 

veteran had a legal right to total 

disability compensation for the 

specified period under the statutes 

governing entitlement to such benefits 

and that VA had authority to grant such 

benefits to the veteran under the statutes 

giving VA authority to award such 

benefits. There are several reasons why 

this interpretation best effectuates 

congressional intent. 

First, VA’s interpretation comports 

logically with the language of sections 

1311(a)(2) and 1318(b) viewed in their 

entirety. Although the statutory 

language alone evinces no clear 

meaning, it may provide evidence of 

congressional intent for consideration in 

connection with other interpretive tools. 

Section 1311(a)(2) requires that the 

veteran, ‘‘at the time of death,’’ have 

been ‘‘entitled to receive’’ compensation 

for a service-connected disability ‘‘that 

was rated totally disabling for a 

continuous period of at least eight years 

immediately preceding death.’’ Section 

1318(b) similarly requires that the 

veteran, ‘‘at the time of death,’’ have 

been ‘‘entitled to receive’’ compensation 

for a service-connected disability that 

‘‘was continuously rated totally 

disabling’’ for a specified period 

immediately preceding death. The 

requirement that the disability have 

been ‘‘rated totally disabling’’ for a 

specified period is consistent with an 

intent to require that the veteran have 

held a total disability rating assigned by 

VA under the statutes and regulations 

governing disability ratings for the 

specified period. By statute, a veteran is 

entitled to receive total disability 

compensation only during periods in 

which the disability is rated totally 

disabling by VA. See 38 U.S.C. 1114(j). 

If Congress intended to authorize 

benefits without regard to whether the 

veteran had obtained, or taken the steps 

necessary to obtain, a total disability 

rating from VA, it would have been 

more logical to require only that the 

veteran ‘‘was totally disabled’’ for the 

specified period, rather than requiring 

that the veteran was ‘‘rated totally 

disabled’’ for such period. 

Second, VA’s interpretation comports 

with the purposes indicated by the 

legislative history of sections 1311(a)(2) 

and 1318(b). In providing for payment 

of DIC based on the veteran’s 

entitlement to total disability 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72215 

compensation during his or her lifetime, 

Congress explained that its purpose was 

to replace the source of income the 

veteran’s family would otherwise lose 

when the veteran died and his or her 

compensation payments ceased. The 

Senate Committee on Veterans’ Affairs 

explained this purpose by stating: 

The appropriate Federal obligation to these 

survivors should, in the Committee’s view, 

be the replacement of the support lost when 

the veteran dies. For example, assume that a 

veteran who is totally blind from serviceconnected causes dies at the age of 55 from 

a heart attack, having been so disabled from 

the age of 22—a period of 33 years. During 

that period, his wife and he depended upon 

his disability compensation for income 

support, but, because his death is not service 

connected, she would not receive DIC. 

S. Rep. No. 95–1054 at 28 (1978), 

reprinted in, 1978 U.S.C.C.A.N. 3465, 

3486. Permitting survivors to rely on 

new and material evidence or on CUE 

to establish a veteran’s entitlement to 

benefits that were not actually awarded 

during the veteran’s lifetime would be 

contrary to the stated purpose to replace 

income that veterans and their families 

had come to depend on by virtue of 

having received total disability 

payments for a prolonged period prior 

to death. While Congress subsequently 

explicitly amended the 1978 legislation 

in 1982 to allow for recovery of DIC 

benefits in cases of CUE, as indicated 

below, significantly, it made no similar 

express provision for recovery in cases 

where new and material evidence is 

presented to establish a veteran’s 

entitlement to benefits that were not 

actually awarded during the veteran’s 

lifetime and could not have been 

awarded to the veteran retroactively if 

he or she had survived. 

In 1982, Congress expanded the 

criteria for DIC eligibility under what is 

now 38 U.S.C. 1318, by authorizing DIC 

in cases where the veteran would have 

received total disability compensation 

for the specified period prior to death 

but for CUE committed by VA in a 

decision on a claim submitted during 

the veteran’s lifetime. The stated 

purpose of that change was ‘‘to provide 

that the existence of a clear and 

unmistakable error should not defeat 

entitlement to the survivors’ benefits.’’

S. Rep. No. 97–550, at 35 (1982), 

reprinted in 1982 U.S.C.C.A.N. 2877, 

2898. The legislative history further 

explained that, ‘‘[u]nder the 

amendment, a veteran would not need 

actually to have been ‘in receipt’ of total 

disability benefits for the requisite 

period of time in order to provide 

eligibility to the survivors if a clear and 

unmistakable error had been made that 

resulted in a shorter period of receipt 

than should have been provided.’’ Id. 

Permitting survivors to rely on new 

and material evidence to establish a 

veteran’s entitlement to benefits that 

were not actually awarded during the 

veteran’s lifetime would go well beyond 

the stated purpose to provide DIC in 

cases where CUE resulted in a shorter 

period of entitlement than should have 

been provided. As noted above, new 

and material evidence generally does 

not have retroactive effect and could not 

establish a longer period of 

compensation entitlement for any 

veteran, as correction of CUE may do. 

The legislative history of the 1982 

statute reasonably reflects the principle 

that veterans and their families should 

not be penalized in cases where the 

veteran did everything necessary to 

establish entitlement to a total disability 

rating for the required period, but VA’s 

error prevented the timely assignment of 

such rating. The purpose of that 

amendment was clearly remedial, in the 

same way that the general authority to 

correct CUE retroactively is remedial. In 

contrast, the authority to reopen and 

grant claims upon receipt of new and 

material evidence (other than service 

department records that were previously 

in the government’s possession) is not 

remedial, in that it does not correct any 

past error, but merely permits a new 

adjudication informed by new evidence. 

In view of the stated congressional 

purpose, we believe it is appropriate to 

recognize the distinction between 

statutory procedures that may result in 

the retroactive assignment of a total 

disability rating for periods prior to 

death (i.e., correction of CUE; 

readjudication based on newly 

identified service department records) 

and those that may not (i.e., reopening 

based on new and material evidence 

other than service department records). 

It is, further, appropriate to recognize a 

distinction between procedures 

designed to remedy governmental error 

(i.e., correction of CUE; readjudication 

based on newly identified service 

department records) and those that are 

not (i.e., reopening based on new and 

material evidence). Newly identified 

service department records are 

considered ‘‘lost or mislaid,’’ 38 CFR 

3.400(q)(2), presumably by the 

government, and therefore belong 

conceptually with CUE, rather than with 

new and material evidence. In view of 

Congress’s stated purpose to allow DIC 

where VA’s error was the only obstacle 

to the veteran’s receipt of benefits, we 

find no basis for extending DIC to 

circumstances where there was no VA 

error and, moreover, where VA would 

have no statutory authority to award 

retroactive entitlement to the veteran if 

the veteran were still alive. 

A third basis for our interpretation of 

the statutory language is our conclusion 

that, when Congress conditioned a 

survivor’s DIC eligibility on the extent 

and duration of a veteran’s entitlement 

to benefits, it intended that VA would 

apply the existing statutory provisions 

governing the extent and duration of the 

veteran’s entitlement, including those 

prohibiting VA from according 

retroactive effect to decisions based on 

new and material evidence. As a general 

rule, new statutes enacted as part of an 

established statutory scheme must be 

construed to fit logically within the 

statutory scheme. See United States v. 

Jefferson Electric Mfg. Co., 291 U.S. 386, 

396 (1934) (‘‘As a general rule, where 

the legislation dealing with a particular 

subject consists of a system of related 

general provisions indicative of a settled 

policy, new enactments of a fragmentary 

nature on that subject are to be taken as 

intended to fit into the existing system 

and to be carried into effect conformably 

to it, excepting as a different purpose is 

plainly shown.’’) When Congress 

enacted statutes authorizing DIC in 

cases where a veteran was ‘‘entitled to 

receive’’ a specific type of benefit at a 

specific level for a specific time period, 

it is reasonable to assume that Congress 

intended VA to apply the established 

statutory and regulatory scheme then in 

place governing entitlement to benefits, 

including those statutes and regulations 

that delimit the duration and level of 

entitlement. As discussed above and in 

the notice of proposed rulemaking, 

those provisions permit retroactive 

determinations of entitlement only in 

limited circumstances, involving CUE or 

newly identified service department 

records. 

Finally, we note that an alternate 

interpretation—i.e., requiring VA to 

ignore the statutory and regulatory 

provisions governing a veteran’s 

entitlement to benefits and the level and 

duration of such entitlement—would 

result in a process fraught with 

uncertainty. Under the effective date 

provisions of 38 U.S.C. 5110 and 

corresponding VA regulations, the 

duration of any veteran’s entitlement to 

benefits may be determined with 

relative ease and certainty, most often 

by reference to the date of the claim that 

resulted in the award of benefits. 

Although the effective date of 

entitlement may not correspond to the 

date the veteran actually became 

disabled or attained a particular level of 

disability, the statutory procedure 

promotes certainty and administrative 

efficiency. However, if determinations 

regarding a veteran’s entitlement to 

72216 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

benefits are to be made without regard 

to the statutes expressly governing the 

effective dates of entitlement, there 

would be no clear basis for determining 

when a veteran’s entitlement to a total 

disability rating began. Even assuming 

that the veteran’s ‘‘hypothetical’’

entitlement would begin on the date he 

or she became totally disabled due to a 

service-connected disability, such a 

determination ordinarily would be 

exceedingly difficult, highly 

speculative, and would lend itself to 

prolonged evidentiary disputes, 

potentially involving medical opinions 

or lay testimony rendered many years 

after the events in question. The 

difficulty of such determinations would 

be compounded by the need to evaluate 

the decedent’s condition over a 

prolonged continuous period of many 

years prior to death. In view of 

Congress’ practice of imposing clear and 

definite effective-date rules for VA 

benefit awards and limiting retroactive 

awards and the complex issues they 

involve, we believe it is reasonable to 

conclude that Congress did not intend 

to impose a much more complex and 

uncertain process for determining a 

veteran’s entitlement to benefits for 

purposes of sections 1311(a)(2) and 

1318. This conclusion is underscored by 

the stated purposes of those statutes to 

authorize benefits in cases where the 

veteran’s entitlement can be simply and 

readily established—i.e., where the 

veteran was actually receiving total 

disability compensation at the time of 

death or would have received such 

benefits but for a VA error that is clearly 

and unmistakably shown by the record 

created during the veteran’s lifetime. 

NOVA presents three comments 

regarding the foregoing analysis. First, it 

asserts that the congressional purpose to 

replace income lost when a totallydisabled veteran dies would apply 

equally in circumstances in which the 

veteran held a total-disability rating for 

less than the specified statutory period. 

We do not dispute nor diminish the 

hardship that any family may face 

following the death of a veteran family 

member and the resulting termination of 

VA benefit payments. However, 

Congress has specified by statute the 

period of a veteran’s entitlement to total 

disability compensation that is 

necessary to vest survivors with DIC 

entitlement under section 1311(a)(2) 

and 1318(b). The difficult task of 

drawing lines governing benefit 

entitlement is a policy matter entrusted 

to Congress and VA is not at liberty to 

alter the statutory standards Congress 

has adopted. See Mathews v. Diaz, 426 

U.S. 67, 83–84 (1976). Accordingly, we 

make no change based on this comment. 

Second, NOVA asserts that allowing 

survivors to rely upon any type of new 

and material evidence submitted after a 

veteran’s death would serve a ‘‘remedial 

purpose’’ similar to the correction of 

CUE and would be consistent with the 

congressional intent to authorize DIC 

where VA error prevented the veteran 

from receiving benefits during his or her 

lifetime. We do not agree. The statutory 

and regulatory provisions relating to 

CUE and newly obtained service 

department records are unique not 

merely because they can fairly be 

described as having a ‘‘remedial’’

purpose, but also because they 

effectuate that purpose by expressly 

authorizing retroactive awards of 

entitlement to benefits. There is no 

similar authority for retroactive awards 

based on new and material evidence, 

and the mere assertion that the 

reopening of claims serves a remedial 

function cannot provide such authority 

in view of the effective-date rules in 38 

U.S.C. 5110(a). Moreover, it is not 

accurate to say that a reopening based 

on new and material evidence provides 

a remedy for VA error. As the Federal 

Circuit stated in Sears v. Principi, VA’s 

effective-date regulations reasonably 

differentiate between reopening based 

on previously unobtained service 

department records, which provides a 

remedy for ‘‘government errors or 

inattention,’’ and reopening based on 

other evidence, which encompasses 

‘‘situations outside the control of the 

government,’’ such as where the new 

evidence was not provided earlier 

‘‘either due to inattention by the veteran 

or his representatives or subsequent 

advances in medicine and science.’’

Sears, 349 F.3d at 1331. Accordingly, 

we make no change based on this 

comment. 

Third, NOVA asserts that interpreting 

sections 1311 and 1318 to permit 

reopening based on new and material 

evidence would have no significant 

practical effects on VA claim 

processing. NOVA asserts that DIC 

claimants alone would be responsible 

for developing evidence relevant to their 

claim and that VA would have no need 

to conduct any evidentiary development 

unless it were for the improper purpose 

of trying to refute the survivor’s DIC 

claim. VA does not agree with this 

comment. If new and material evidence 

submitted after a veteran’s death could 

potentially establish a survivor’s 

entitlement to DIC under section 

1311(a)(2) and 1318(b), VA would be 

required by statute and regulation, to 

assist the claimant in obtaining 

evidence necessary to substantiate the 

claim. 38 U.S.C. 5103A; 38 CFR 

3.159(c). Such assistance would be 

necessary if the claimant needed help 

obtaining allegedly new and material 

evidence or if evidence submitted by the 

claimant was insufficient to permit fair 

adjudication of the claim. The assertion 

that VA’s assistance could serve no 

purpose other than to refute the claim 

is factually incorrect and is contrary to 

law and to longstanding VA policy. 

Further, the practical concerns we 

discussed were not based merely on the 

fact that VA would need to assist 

claimants in developing evidence, as 

VA routinely does. Rather, the burdens 

unique to NOVA’s suggested 

interpretation of sections 1311(a)(2) and 

1318(b) would involve the difficulty of 

resolving medical issues regarding the 

duration and degree of a veteran’s 

disability many years after the events in 

question and the difficulty of 

ascertaining a specific period of the 

veteran’s ‘‘entitlement’’ to total 

disability benefits in the absence of an 

applicable statutory standard defining 

the period of entitlement. As noted 

above, 38 U.S.C. 5110(a) provides a 

definite and specific mechanism for 

measuring the beginning date of any 

individual’s entitlement to benefits. If, 

as NOVA suggests, that provision is 

inapplicable in determining the period 

of a veteran’s entitlement to total 

disability benefits for purposes of 

section 1311(a)(2) and 1318(b), there 

would be no clear basis for defining the 

period of a veteran’s entitlement. 

Assuming the matter involved a purely 

factual determination as to when the 

veteran’s total disability began, 

resolution of that question would often 

be a matter of significant uncertainty 

and speculation, compounded by the 

remoteness of the events and the 

unavailability of the veteran. There 

potentially would be equal difficulty in 

determining whether the veteran was 

totally disabled throughout the specified 

statutory period, as sections 1311(a)(2) 

and 1318(b) require, in the absence of 

clear and contemporaneous disability 

evaluations throughout that period. See 

38 CFR 4.1, 4.2 (discussing the need for 

thorough medical reports to support 

disability evaluations). 

We do not suggest that these problems 

are entirely insurmountable. Rather, as 

stated in the notice of proposed 

rulemaking, the extent of the burdens 

and uncertainty that would be 

associated with this interpretation of 

sections 1311(a)(2) and 1318(b) lends 

support to our conclusion that Congress 

did not intend that interpretation. The 

legislative history reflects that Congress 

intended to authorize these DIC benefits 

in at least two circumstances in which 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72217 

the extent and duration of the veteran’s 

entitlement to benefits can be readily 

established by the record of proceedings 

during the veteran’s lifetime, i.e., where 

the veteran actually received total 

disability benefits for the specified 

period or would have received such 

benefits but for a VA error that is clear 

and unmistakable on the existing 

record. Viewed against these definite 

and efficient standards, it is unlikely 

that Congress intended to impose the 

much more complex, uncertain, and 

hypothetical adjudicative actions that 

would be necessary in determinations 

based on new and material evidence. 

For the foregoing reasons, we make no 

change based upon this comment. 

B. Comments Based on 38 U.S.C. 

5110(a) 

As explained above, VA concluded 

that the submission of new and material 

evidence following a veteran’s death 

could generally not retroactively 

establish that the veteran was ‘‘entitled 

to receive’’ compensation for periods 

prior to the veteran’s death, because 38 

U.S.C. 5110(a) prohibits retroactive 

awards based on new and material 

evidence. NOVA asserts that this 

statutory limit on retroactivity is 

irrelevant because section 1311(a)(2) or 

1318(b) would not require VA to pay 

any retroactive benefits to a veteran. 

Rather, NOVA asserts, VA would be 

required only to pay prospective DIC 

benefits to survivors in a manner 

consistent with section 5110(a). 

VA does not agree with this comment. 

NOVA is correct that VA would not be 

required to pay retroactive benefits to a 

deceased veteran or to the DIC claimant. 

However, a survivor’s claim for benefits 

under section 1311(a)(2) or section 

1318(b) is predicated on the veteran’s 

entitlement to benefits insofar as the 

statutes authorize benefits only if the 

veteran was ‘‘entitled to receive’’ total 

disability compensation for a specified 

period prior to death. In order to 

determine whether a veteran was 

‘‘entitled to receive’’ benefits for past 

periods, VA necessarily must consider 

section 5110(a), which imposes limits 

on a veteran’s entitlement to receive, 

and VA’s authority to award, benefits 

for specific periods. If a veteran whose 

claim was denied ten years ago were to 

submit new evidence establishing that 

he was totally disabled due to serviceconnected disability, section 5110(a) 

would permit VA to award 

compensation only from the date the 

claim was reopened, even if the total 

disability may have arisen at an earlier 

date. The veteran’s reopened claim 

could not establish a right to receive 

benefits for any prior periods. New and 

material evidence submitted after a 

veteran’s death could no more establish 

the veteran’s retroactive entitlement to 

benefits than could evidence submitted 

by the veteran himself during his 

lifetime. Although an adjudication 

under section 1311(a)(2) or section 

1318(b) based on new and material 

evidence would not require VA to 

actually release payment to a deceased 

veteran, such a claim could prevail only 

if VA were to find that the veteran was 

entitled to receive payment from VA for 

periods prior to the date VA received 

the new and material evidence 

establishing such entitlement. Such a 

finding would be contrary to the 

requirements of section 5110(a). 

Accordingly, we make no change based 

on this comment. 

NOVA also states that, although 

section 5110(a) limits the effective date 

of awards based on claims reopened 

after a final adjudication, the statute 

refers separately to the effective date of 

claims for DIC and provides that the 

effective date of such awards ‘‘shall be 

fixed in accordance with the facts 

found.’’ NOVA asserts that it is 

improper for VA to rely on the statute’s 

reference to reopened claims because 

effective-date issues in claims under 

section 1311(a)(2) and 1318(b) are 

governed by section 5110(a)’s reference 

to DIC claims. 

VA does not agree with this comment. 

Section 5110(a) states a single effectivedate rule applicable to ‘‘an original 

claim, a claim reopened after final 

adjudication, or a claim for increase, of 

compensation, [or] dependency and 

indemnity compensation’’ and provides 

that the effective date of any such award 

‘‘shall be in accordance with the facts 

found but shall not be earlier than the 

date of receipt of application therefor.’’

In the context of a claim for DIC benefits 

under section 1311(a)(2) or 1318(b), 

there are potentially two effective-date 

issues to which section 5110(a) may 

apply. First, as explained above, section 

5110(a) would govern the effective date 

of any compensation award to the 

veteran and thus would determine the 

date, if any, on which a veteran became 

‘‘entitled to receive’’ total disability 

compensation. The duration of the 

veteran’s total disability compensation, 

if any, would determine whether the 

survivor was entitled to DIC under 

section 1311(a)(2) or 1318(b). Second, if 

the survivor is entitled to DIC, section 

5110(a) would again operate to 

determine the effective date of the 

survivor’s entitlement. The issue of the 

effective date of a survivor’s DIC award, 

if one is made, is both logically and 

sequentially distinct from the issue of 

the effective date of any benefits the 

veteran was entitled to receive during 

his or her lifetime. Accordingly, the fact 

that section 5110(a) would govern the 

effective date of a survivor’s DIC award 

does not conflict with our conclusion 

that section 5110(a) also applies in 

determining whether and to what extent 

the veteran was ‘‘entitled to receive’’

benefits from VA. We therefore make no 

change based on this comment. 

C. Comments Based on 38 U.S.C. 5108 

PVA asserts that the proposed rules 

are inconsistent with 38 U.S.C. 5108 

insofar as they provide that newly 

identified service department records 

may provide a basis for establishing that 

a veteran was ‘‘entitled to receive’’

benefits for past periods but that other 

types of new evidence submitted after a 

veteran’s death may not establish that 

fact. Section 5108 provides that, ‘‘[i]f 

new and material evidence is presented 

or secured with respect to a claim which 

has been disallowed, the Secretary shall 

reopen the claim and review the former 

disposition of the claim.’’ PVA asserts 

that this statute unambiguously requires 

VA to reopen a previously denied claim 

when new and material evidence is 

received. PVA further asserts that, 

because this statute does not limit the 

form of acceptable new and material 

evidence, there is no basis for VA’s 

conclusion that newly identified service 

department records, but not other types 

of records, submitted after a veteran’s 

death, may establish that a veteran was 

‘‘entitled to receive’’ benefits for periods 

prior to death. NOVA similarly asserts 

that there is no rational basis for 

distinguishing between newly identified 

service department records and other 

types of new evidence. 

VA does not agree with these 

comments. Section 5108 allows 

claimants to reopen their benefit claims 

after a final denial. It is well established, 

however, that a veteran’s claim for 

disability compensation does not 

survive the veteran’s death. See Richard 

v. West, 161 F.3d 719, 721–22 (Fed. Cir. 

1998). Section 5108 thus provides no 

general authority for survivors to 

‘‘reopen’’ a deceased veteran’s claim 

with new and material evidence. A 

survivor’s claim for DIC under section 

1311(a)(2) or section 1318(b) is not a 

‘‘reopening’’ of the deceased veteran’s 

compensation claim within the meaning 

of 38 U.S.C. 5108, but instead is a 

distinct claim for DIC benefits by the 

survivor. 

Insofar as the proposed rule allows 

survivors to submit newly identified 

service department records after a 

veteran’s death, the rule is not based 

upon 38 U.S.C. 5108, but upon the 

provisions of 38 U.S.C. 1311(a)(2) and 

72218 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

1318(b), viewed in the context of the 

overall statutory scheme in title 38, 

United States Code. Although a 

veteran’s claim does not survive his or 

her death, sections 1311(a)(2) and 

1318(b) are most reasonably construed 

to permit examination of decisions on a 

veteran’s claim to the extent necessary 

to determine the survivor’s entitlement 

to DIC. Because a survivor’s entitlement 

to DIC under section 1311(a)(2) and 

1318(b) may depend upon whether the 

veteran was ‘‘entitled to receive’’ total 

disability benefits for a specified 

number of years prior to death, it is 

reasonable to conclude that Congress 

intended to permit VA to examine prior 

claims or decisions under limited 

circumstances to determine whether the 

veteran was ‘‘entitled to receive’’ total 

disability benefits for the specified 

statutory period. This congressional 

intent is made clear by the legislative 

history stating an intent to allow DIC 

under sections 1311(a)(2) and 1318(b) if 

it is shown that the veteran would have 

received the specified compensation 

benefits but for CUE in a decision on a 

claim during the veteran’s lifetime. As 

explained above, a veteran’s retroactive 

entitlement to benefits may be 

established by a showing that prior 

decisions contained CUE or by newly 

identified service department records 

that establish entitlement to benefits. 

However, new and material evidence, if 

submitted after a veteran’s death, could 

not establish such retroactive 

entitlement. Accordingly, the 

distinction in the proposed rule 

between newly identified service 

department records and new evidence 

submitted after death merely reflects the 

distinction between circumstances that 

may satisfy the eligibility requirements 

of section 1311(a)(2) and 1318(b) and 

circumstances that could not as a matter 

of law satisfy those eligibility 

requirements. 

PVA and NOVA are correct that 38 

U.S.C. 5108 does not distinguish 

between newly obtained service 

department records and other types of 

new evidence. However, the other 

statutory and regulatory provisions 

upon which the proposed rule was 

based do reflect a material distinction 

between the retroactive effect of awards 

based on newly obtained service 

department records and awards based 

on other types of new evidence. As 

explained above, 38 U.S.C. 5110(a) 

makes clear that entitlement to benefits 

based on a claim reopened with new 

and material evidence generally may be 

effective no earlier than the date VA 

received the reopened claim, and thus 

cannot establish retroactive entitlement 

for periods prior to the reopening. See 

also 38 CFR 3.400(q)(1). VA regulations 

recognize an exception to this general 

rule in cases where a previously denied 

claim is reopened with newly obtained 

service department records. In such 

cases, VA’s regulations state that the 

effective date of entitlement to benefits 

will ‘‘agree with evaluation (since it is 

considered that these records were lost 

or mislaid) or date of receipt of claim on 

which prior evaluation was made, 

whichever is later.’’ 38 CFR 3.400(q)(2); 

see also 38 CFR 3.156(c). 

The Federal Circuit has acknowledged 

and upheld the distinction between the 

retroactivity of awards based on newly 

obtained service department records 

and awards based on other types of new 

evidence. In Sears, the court stated: 

[A] claim that is reopened for new and 

material evidence in the form of missing 

service medical records dates back to the 

filing of the veteran’s original claim for 

benefits. 38 CFR 3.400(q)(2) (2003). 

Section 3.400(q)(1)(ii) applies to other 

instances of new and material evidence, 

situations in which the new evidence was 

not presented earlier, either due to 

inattention by the veteran or his 

representative or subsequent advances in 

medicine and science. We conclude that 

section 3.400, which differentiates between 

government errors or inattention, and 

situations outside the control of the 

government, is not unreasonable. 

349 F.3d at 1331. As the Court noted, 

the rules permitting retroactive awards 

based on newly identified service 

department records reflect the judgment 

that the failure to establish benefit 

entitlement at an earlier date would, in 

such cases, be a result of ‘‘government 

errors or inattention.’’ In this respect, 

the rules governing awards based on 

such service department records serve a 

remedial function similar to the rules 

governing the correction of CUE in prior 

decisions. In contrast, as the Federal 

Circuit noted, awards based on other 

types of new evidence do not remedy 

past government error, but merely 

permit consideration of new evidence 

that was not previously submitted for 

reasons outside the government’s 

control. This distinction is also 

supported by the CAVC’s decision in 

Spencer, 4 Vet. App. at 293, which 

stated that, generally, ‘‘even upon a 

reopening, the prior claim is still ‘final’

in a sense,’’ because ‘‘[a]ny award of 

benefits made upon a claim reopened 

under section 5108 on other than 

service department reports will have an 

effective date no earlier than the date of 

the filing of the claim to reopen.’’ The 

CAVC noted that VA’s regulations 

according retroactive effect to awards 

based on service department records 

were rooted in VA regulations dating 

back to the 1930s and were consistent 

with prior statutory provisions. 

For the reasons stated above, the 

distinction in the proposed rules 

between awards based on newly 

identified service department records 

and awards based on other types of new 

evidence is reasonable and is not 

inconsistent with 38 U.S.C. 5108. 

Accordingly, we make no change based 

upon the referenced comments. 

D. Other Comments 

NOVA asserts that VA should not 

distinguish between claims involving 

newly obtained service department 

records and claims involving other new 

evidence submitted after a veteran’s 

death, because the function of either 

type of evidence would be the same, i.e., 

to provide a factual basis for 

determining that the veteran met the 

criteria for a total disability rating for 

the specified period prior to death. This 

comment is based on the assumption 

that a survivor is entitled to DIC under 

section 1311(a)(2) and 1318(b) whenever 

current evidence shows that the veteran 

was totally disabled due to serviceconnected disability for the specified 

period, irrespective of whether the 

veteran was entitled to receive any 

payments from VA for that period under 

the statutes and regulations governing 

awards of VA benefits. That assumption 

is incorrect, for the reasons set forth 

above. Because new evidence other than 

newly identified service department 

records cannot retroactively establish 

that a veteran was ‘‘entitled to receive’’

benefits for past periods, we make no 

change based on this comment. 

NOVA also asserts that the regulation 

is arbitrary insofar as it permits new 

evidence only in the form of newly 

identified service department records 

because, in NOVA’s view, service 

department records could not provide 

any information supporting the claim. 

VA does not agree. Service department 

records may be highly relevant in some 

circumstances, such as where the fact of 

the veteran’s total disability was 

established, but VA had previously 

denied service connection for the 

disability due to the absence of evidence 

that the disability arose in service. 

Moreover, the reference in the proposed 

rules to service department records is 

not arbitrary, but properly reflects the 

existing statutory and regulatory 

scheme, which makes clear that service 

department records are the only form of 

new evidence that potentially may 

establish that a veteran was ‘‘entitled to 

receive’’ total disability compensation 

for past periods. 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72219 

III. Section 20.1106 

We proposed to revise 38 CFR 

20.1106 in two respects. First, we 

proposed to add a reference in that rule 

to 38 U.S.C. 1311(a)(2), to clarify that 

claims under that statute are exempt 

from the general rule that issues in a 

survivor’s claim for death benefits will 

be decided without regard to any 

disposition of the same issues during 

the veteran’s lifetime. Second, we 

proposed to revise the regulation to state 

that VA would disregard only 

‘‘unfavorable’’ dispositions during the 

veteran’s lifetime. We explained that the 

second change would reflect VA’s 

traditional practice of disregarding only 

unfavorable decisions and would 

resolve an ambiguity existing by virtue 

of differing language in the caption of 

§ 20.1106, which refers to ‘‘unfavorable’’

decisions during a veteran’s lifetime, 

and the text of § 20.1106, which more 

broadly states that VA will decide a 

survivor’s claims without regard to ‘‘any 

prior disposition.’’

We received no comments on the 

proposed revisions to § 20.1106. Upon 

further consideration, however, we have 

concluded that the second change 

discussed above would be misleading 

and potentially inconsistent with 

statutory requirements in some 

instances. In a precedential opinion 

designated as VAOPGCPREC 11–96, 

VA’s General Counsel noted that VA’s 

traditional practice under § 20.1106 had 

been to disregard only unfavorable 

dispositions on a veteran’s claim and, 

correspondingly, to accept favorable 

findings of service connection made 

during a veteran’s lifetime. The General 

Counsel concluded that this practice 

was inconsistent with the requirements 

of a statute limiting VA’s authority to 

grant service connection for a veteran’s 

death for purposes of a survivor’s DIC 

claim, even if VA had correctly granted 

service connection to the veteran during 

his or her lifetime for the condition that 

eventually caused the veteran’s death. 

The General Counsel noted that 

Congress had enacted a statute that 

prospectively prohibited VA from 

granting service connection for 

disability or death due to an injury or 

disease caused by the veteran’s abuse of 

alcohol or drugs. 38 U.S.C. 105. The 

General Counsel concluded that, even if 

VA had properly granted service 

connection to a veteran prior to the 

enactment of this statute, the statute 

precluded VA from granting service 

connection for the veteran’s death if the 

death was caused by an injury or 

disease resulting from the veteran’s 

abuse of alcohol or drugs. The General 

Counsel concluded that VA’s traditional 

practice under § 20.1106 must yield in 

the face of statutory provisions requiring 

a different result. 

A similar concern exists with respect 

to 38 U.S.C. 1103(a), which prohibits 

VA from establishing service connection 

for disability or death on the basis that 

it resulted from injury or disease 

attributable to the veteran’s use of 

tobacco products during the veteran’s 

service. In Kane v. Principi, 17 Vet. 

App. 97 (2003), the CAVC held that 

section 1103(a) prohibits VA from 

establishing service connection for a 

veteran’s death due to an injury or 

disease related to the veteran’s tobacco 

use even if VA had properly granted 

service connection for that injury or 

disease during the veteran’s lifetime 

based on then-existing law. 

Although there may be relatively few 

instances in which the Board would be 

required by statute to disregard a 

favorable decision during a veteran’s 

lifetime, the proposed unqualified 

reference to disregarding only 

‘‘unfavorable’’ decisions would be 

misleading and inaccurate with respect 

to such cases. Accordingly, we are not 

adopting that proposed change to 

§ 20.1106. We recognize that § 20.1106 

currently is ambiguous as to whether it 

requires the Board to disregard only 

unfavorable decisions. However, the 

revision we proposed would not be 

legally accurate or sufficiently 

informative with respect to all potential 

applications of that rule. A clarification 

of the applicable law and VA policy 

with respect to this matter would 

require consideration of matters beyond 

the scope of the proposed rule and, 

therefore, would more properly be the 

subject of a separate rule making. 

We are, however, adopting as final the 

proposal to revise § 20.1106 to specify 

that claims under 38 U.S.C. 1311(a)(2) 

are among the types of claims exempt 

from the general rule that issues in a 

decision on a survivor’s claim for death 

benefits will be decided without regard 

to any prior disposition of those issues 

during the veteran’s lifetime. That 

proposed change is consistent with our 

determination that claims under 

sections 1311(a)(2) and 1318(b) should 

be addressed in the same manner. As 

noted above, we received no comments 

on that proposed change, which we now 

adopt as final. 

For the reasons stated above and in 

the notice of proposed rulemaking, VA 

will adopt the proposed rules as final, 

with the changes discussed above. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

developing any rule that may result in 

an expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

given year. This proposed amendment 

would have no such effect on State, 

local, or tribal governments, or the 

private sector. 

Executive Order 12866 

The Office of Management and Budget 

has reviewed this document under 

Executive Order 12866. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

Regulatory Flexibility Act 

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, 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 and their survivors 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. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

are 64.109, Veterans Compensation for 

Service-Connected Disability; and 

64.110, Veterans Dependency and 

Indemnity Compensation for ServiceConnected Death. 

List of Subjects 

38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

38 CFR Part 20 

Administrative practice and 

procedure, Claims, Veterans. 

Approved: August 1, 2005. 

R. James Nicholson, 

Secretary of Veterans Affairs. 

■ For the reasons set forth in the 

preamble, 38 CFR parts 3 and 20 are 

amended as follows: 

72220 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

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. 

§ 3.5 [Amended] 

■ 2. Section 3.5 is amended by 

removing paragraph (e). 

■ 3. Section 3.10 is added to read as 

follows: 

§ 3.10 Dependency and indemnity 

compensation rate for a surviving spouse. 

(a) General determination of rate. 

When VA grants a surviving spouse 

entitlement to DIC, VA will determine 

the rate of the benefit it will award. The 

rate of the benefit will be the total of the 

basic monthly rate specified in 

paragraph (b) or (d) of this section and 

any applicable increases specified in 

paragraph (c) or (e) of this section. 

(b) Basic monthly rate. Except as 

provided in paragraph (d) of this 

section, the basic monthly rate of DIC 

for a surviving spouse will be the 

amount set forth in 38 U.S.C. 1311(a)(1). 

(c) Section 1311(a)(2) increase. The 

basic monthly rate under paragraph (b) 

of this section shall be increased by the 

amount specified in 38 U.S.C. 1311(a)(2) 

if the veteran, at the time of death, was 

receiving, or was entitled to receive, 

compensation for service-connected 

disability that was rated by VA as totally 

disabling for a continuous period of at 

least eight years immediately preceding 

death. Determinations of entitlement to 

this increase shall be made in 

accordance with paragraph (f) of this 

section. 

(d) Alternative basic monthly rate for 

death occurring prior to January 1, 

1993. The basic monthly rate of DIC for 

a surviving spouse when the death of 

the veteran occurred prior to January 1, 

1993, will be the amount specified in 38 

U.S.C. 1311(a)(3) corresponding to the 

veteran’s pay grade in service, but only 

if such rate is greater than the total of 

the basic monthly rate and the section 

1311(a)(2) increase (if applicable) the 

surviving spouse is entitled to receive 

under paragraphs (b) and (c) of this 

section. The Secretary of the concerned 

service department will certify the 

veteran’s pay grade and the certification 

will be binding on VA. DIC paid 

pursuant to this paragraph may not be 

increased by the section 1311(a)(2) 

increase under paragraph (c) of this 

section. 

(e) Additional increases. One or more 

of the following increases may be paid 

in addition to the basic monthly rate 

and the section 1311(a)(2) increase. 

(1) Increase for children. If the 

surviving spouse has one or more 

children under the age of 18 of the 

deceased veteran (including a child not 

in the surviving spouse’s actual or 

constructive custody, or a child who is 

in active military service), the monthly 

DIC rate will be increased by the 

amount set forth in 38 U.S.C. 1311(b) for 

each child. 

(2) Increase for regular aid and 

attendance. If the surviving spouse is 

determined to be in need of regular aid 

and attendance under the criteria in 

§ 3.352 or is a patient in a nursing home, 

the monthly DIC rate will be increased 

by the amount set forth in 38 U.S.C. 

1311(c). 

(3) Increase for housebound status. If 

the surviving spouse does not qualify 

for the regular aid and attendance 

allowance but is housebound under the 

criteria in § 3.351(f), the monthly DIC 

rate will be increased by the amount set 

forth in 38 U.S.C. 1311(d). 

(f) Criteria governing section 

1311(a)(2) increase. In determining 

whether a surviving spouse qualifies for 

the section 1311(a)(2) increase under 

paragraph (c) of this section, the 

following standards shall apply. 

(1) Marriage requirement. The 

surviving spouse must have been 

married to the veteran for the entire 

eight-year period referenced in 

paragraph (c) of this section in order to 

qualify for the section 1311(a)(2) 

increase. 

(2) Determination of total disability. 

As used in paragraph (c) of this section, 

the phrase ‘‘rated by VA as totally 

disabling’’ includes total disability 

ratings based on unemployability (§ 4.16 

of this chapter). 

(3) Definition of ‘‘entitled to receive’’. 

As used in paragraph (c) of this section, 

the phrase ‘‘entitled to receive’’ means 

that the veteran filed a claim for 

disability compensation during his or 

her lifetime and one of the following 

circumstances is satisfied: 

(i) The veteran would have received 

total disability compensation for the 

period specified in paragraph (c) of this 

section but for clear and unmistakable 

error committed by VA in a decision on 

a claim filed during the veteran’s 

lifetime; or 

(ii) Additional evidence submitted to 

VA before or after the veteran’s death, 

consisting solely of service department 

records that existed at the time of a prior 

VA decision but were not previously 

considered by VA, provides a basis for 

reopening a claim finally decided 

during the veteran’s lifetime and for 

awarding a total service-connected 

disability rating retroactively in 

accordance with §§ 3.156(c) and 

3.400(q)(2) of this part for the period 

specified in paragraph (c) of this 

section; or 

(iii) At the time of death, the veteran 

had a service-connected disability that 

was continuously rated totally disabling 

by VA for the period specified in 

paragraph (c) of this section, but was not 

receiving compensation because: 

(A) VA was paying the compensation 

to the veteran’s dependents; 

(B) VA was withholding the 

compensation under the authority of 38 

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

the veteran; 

(C) The veteran had not waived 

retired or retirement pay in order to 

receive compensation; 

(D) VA was withholding payments 

under the provisions of 10 U.S.C. 

1174(h)(2); 

(E) VA was withholding payments 

because the veteran’s whereabouts were 

unknown, but the veteran was otherwise 

entitled to continued payments based 

on a total service-connected disability 

rating; or 

(F) VA was withholding payments 

under 38 U.S.C. 5308 but determines 

that benefits were payable under 38 

U.S.C. 5309. 

(Authority: 38 U.S.C. 501(a), 1311, 1314, and 

1321). 

■ 4. Section 3.22 is amended by revising 

paragraph (b) to read as follows: 

§ 3.22 DIC benefits for survivors of certain 

veterans rated totally disabled at time of 

death. 

* * * * * 

(b) For purposes of this section, 

‘‘entitled to receive’’ means that the 

veteran filed a claim for disability 

compensation during his or her lifetime 

and one of the following circumstances 

is satisfied: 

(1) The veteran would have received 

total disability compensation at the time 

of death for a service-connected 

disability rated totally disabling for the 

period specified in paragraph (a)(2) of 

this section but for clear and 

unmistakable error committed by VA in 

a decision on a claim filed during the 

veteran’s lifetime; or 

(2) Additional evidence submitted to 

VA before or after the veteran’s death, 

consisting solely of service department 

records that existed at the time of a prior 

VA decision but were not previously 

considered by VA, provides a basis for 

reopening a claim finally decided 

during the veteran’s lifetime and for 

awarding a total service-connected 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72221 

disability rating retroactively in 

accordance with §§ 3.156(c) and 

3.400(q)(2) of this part for the relevant 

period specified in paragraph (a)(2) of 

this section; or 

(3) At the time of death, the veteran 

had a service-connected disability that 

was continuously rated totally disabling 

by VA for the period specified in 

paragraph (a)(2), but was not receiving 

compensation because: 

(i) VA was paying the compensation 

to the veteran’s dependents; 

(ii) VA was withholding the 

compensation under authority of 38 

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

the veteran; 

(iii) The veteran had not waived 

retired or retirement pay in order to 

receive compensation; 

(iv) VA was withholding payments 

under the provisions of 10 U.S.C. 

1174(h)(2); 

(v) VA was withholding payments 

because the veteran’s whereabouts were 

unknown, but the veteran was otherwise 

entitled to continued payments based 

on a total service-connected disability 

rating; or 

(vi) VA was withholding payments 

under 38 U.S.C. 5308 but determines 

that benefits were payable under 38 

U.S.C. 5309. 

* * * * * 

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE 

■ 5. The authority citation for part 20 

continues to read as follows: 

Authority: 38 U.S.C. 501(a) and as noted in 

specific sections. 

Subpart L—Finality 

■ 6. Section 20.1106 is revised to read 

as follows: 

§ 20.1106 Rule 1106. Claim for death 

benefits by survivor—prior unfavorable 

decisions during veteran’s lifetime. 

Except with respect to benefits under 

the provisions of 38 U.S.C. 1311(a)(2), 

1318, and certain cases involving 

individuals whose Department of 

Veterans Affairs benefits have been 

forfeited for treason or for subversive 

activities under the provisions of 38 

U.S.C. 6104 and 6105, issues involved 

in a survivor’s claim for death benefits 

will be decided without regard to any 

prior disposition of those issues during 

the veteran’s lifetime. 

* * * * * 

(Authority: 38 U.S.C. 7104(b)). 

[FR Doc. 05–23541 Filed 12–1–05; 8:45 am] 

BILLING CODE 8320–01–P 

POSTAL SERVICE 

39 CFR Part 111 

Domestic Mail: New Postal Rates and 

Fees 

AGENCY: Postal Service. 

ACTION: Notice of implementation of 

new domestic rates and fees. 

SUMMARY: The Governors of the U.S. 

Postal Service accepted the Postal Rate 

Commission’s recommendation to 

increase most postal rates and fees by 

approximately 5.4 percent. The Board of 

Governors set 12:01 a.m. Sunday, 

January 8, 2006, as the effective date for 

the new prices. 

EFFECTIVE DATE: 12:01 a.m., Sunday, 

January 8, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Sherry Suggs, 202–268–7261. 

SUPPLEMENTARY INFORMATION: On April 

8, 2005, the Postal Service filed with the 

Postal Rate Commission a Request for a 

Recommended Decision on Changes in 

Rates of Postage and Fees. The 

Commission designated the filing as 

Docket No. R2005–1. On November 1, 

2005, the Commission issued its 

Opinion and Recommended Decision. 

The Governors approved all of the 

Commission’s recommendations on 

November 14, 2005. Based on the 

decision of the Governors and 

Resolution No. 05–9 of the Board of 

Governors, the Postal Service adopts the 

new rates and fees and sets an effective 

date of 12:01 a.m., January 8, 2006. 

This price increase is the first since 

2002. It is needed to fulfill a Federal law 

passed in 2003 that requires the Postal 

Service to place $3.1 billion in escrow 

by September 30, 2006. 

Customers can find resources and 

additional information about the price 

change at usps.com/ratecase. A special 

issue of the Postal Bulletin with detailed 

information, new rate and fee tables, 

and revised ‘‘EZ’’ (simplified) postage 

statements will be available online 

December 1, 2005. The Postage Rate 

Calculators at pe.usps.com will reflect 

new rates and fees beginning January 8, 

2006. 

The Postal Service adopts the 

following new rates and fees. 

Conforming changes will be made 

throughout Mailing Standards of the 

United States Postal Service, Domestic 

Mail Manual (DMM), incorporated by 

reference in the Code of Federal 

Regulations. See 39 CFR 111.1. 

List of Subjects in 39 CFR Part 111 

Administrative practice and 

procedure, Postal Service. 

PART 111—[AMENDED] 

■ 1. The authority citation for 39 CFR 

part 111 continues to read as follows: 

Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 

401, 403, 404, 414, 3001–3011, 3201–3219, 

3403–3406, 3621, 3626, 5001. 

■ 2. Revise Mailing Standards of the 

United States Postal Service, Domestic 

Mail Manual (DMM), to adopt the 

following new rates and fees. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

BILLING CODE 7710–12–P