Adjudication Regulations; Miscellaneous

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI43

Adjudication Regulations; Miscellaneous

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends adjudication regulations by removing

obsolete sections, updating authority citations, and making other

nonsubstantive changes.

EFFECTIVE DATE: December 26, 1996.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone

(202) 273-7230.

SUPPLEMENTARY INFORMATION: 38 CFR 3.107 contains requirements for

processing benefit awards where claims have not been filed by or on

behalf of all dependents who may be entitled to monetary benefits. The

heading of Sec. 3.107, ``Awards where all dependents do not apply'',

does not accurately reflect its content and we are revising it to read

``Awards where not all dependents apply''.

38 CFR 3.315(c)(1) (i) and (ii) require basic eligibility

determinations under certain circumstances when veterans apply for

education benefits under 38 U.S.C. Chapter 34 and Chapter 32,

respectively. Since 38 U.S.C. Chapter 34 expired on December 31, 1989,

Sec. 3.315(c)(1)(i) is obsolete and we have removed it. The last date

that a veteran seeking benefits under 38 U.S.C. Chapter 32 could have

entered active duty and not have the two-year service requirement found

in 38 U.S.C. 5303A apply was October 16, 1981. If such a veteran also

did not meet the 181-day service requirement, that veteran would have

been released from active duty before April 16, 1982, and, if found

eligible for benefits under 38 U.S.C. Chapter 32, would have had the

period of eligibility expire ten years from the date of release from

active duty, or no later than April 16, 1992. If such a veteran made a

current application for chapter 32 educational benefits, there would be

no need for rating board referral in order to adjudicate that claim.

Section 3.315(c)(1)(ii) is therefore obsolete and we have removed it.

The references in Sec. 3.315(c)(4) to Post-Korean and Vietnam era

service were needed to administer Sec. 3.315(c)(1)(i). Since

Sec. 3.315(c)(1)(i) has been removed,

[[Page 67950]]

there is no longer any need in Sec. 3.315(c)(4) to refer to service

between January 31, 1955, and August 5, 1964, and during the Vietnam

era. We have revised Sec. 3.315(c)(4) accordingly. As there is no

longer any need to refer to 38 U.S.C. 3452(a) in the authority citation

following Sec. 3.315(c), we have removed that reference. Also, that

authority citation contains an incorrect reference to ``10 U.S.C.

2133(b)''. The correct reference is ``10 U.S.C. 16133(b)'', and we have

revised the reference accordingly. Sections 3.315(c)(3)(i) and

3.1000(g) contain incorrect references to ``10 U.S.C. Chapter 106''.

The correct reference is ``10 U.S.C. Chapter 1606'', and we have

revised the references accordingly.

38 CFR 3.400(d) is being deleted because it merely restates a

statute and its provisions have become obsolete.

When the Social Security Administration (SSA) has notified the

Department of Veterans Affairs (VA) that payments to any individual

have been authorized pursuant to section 217(b)(2) of the Social

Security Act (42 U.S.C. 417(b)(2)), 38 CFR 3.709 requires VA to notify

SSA of any determination that death pension, compensation, or

dependency and indemnity compensation is payable to any dependent of

the veteran. Section 5117 of Pub. L. 101-508 revised 42 U.S.C.

417(b)(2) so that it applied only to individuals applying for SSA

benefits before the end of the 18-month period after the month in which

Pub. L. 101-508 was enacted. Since that 18-month period expired on June

1, 1992, 38 CFR 3.709 is obsolete and we have removed it.

38 CFR 3.712(a) concerns the election of improved pension by

Spanish-American War veterans. However, there are no Spanish-American

War veterans currently receiving monetary benefits from VA.

Consequently, Sec. 3.712(a) is no longer required and is removed. Since

the remainder of Sec. 3.712 concerns surviving spouses only, we have

revised the heading to read ``Improved pension elections; surviving

spouses of Spanish-American War veterans'', and redesignated paragraphs

(b)(1) and (b)(2) as paragraphs (a) and (b), respectively.

Pub. L. 95-588 completely revised the statutory framework for VA

pension benefits effective January 1, 1979. 38 CFR 3.961 states that

pension claims pending on December 31, 1978, will be adjudicated under

title 38 U.S.C. as in effect on December 31, 1978, and that pension

claims filed after December 31, 1978, will be adjudicated under title

38 U.S.C. as in effect on January 1, 1979 or thereafter. 38 CFR 3.962

states that claims filed after December 31, 1978, will generally be

adjudicated under title 38 U.S.C. as in effect on December 31, 1978, if

entitlement is based on permanent and total disability that existed or

death that occurred prior to January 1, 1979.

Since such claims have long since been adjudicated, Secs. 3.961 and

3.962 are obsolete and we have removed them.

This final rule makes nonsubstantive changes. Accordingly, this

final rule is promulgated without regard to the notice-and-comment and

effective-date provisions of 5 U.S.C. 553.

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 final rule only makes nonsubstantive changes.

The Catalog of Federal Domestic Assistance program numbers are

64.104, 64.105, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Veterans, Vietnam.

Approved: November 21, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended

as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. In Sec. 3.107, the section heading is revised to read as

follows:

Sec. 3.107 Awards where not all dependents apply.

* * * * *

Sec. 3.315 [Amended]

3. In Sec. 3.315, remove paragraphs (c)(1)(i) and (c)(1)(ii) are

removed, and paragraphs (c)(1)(iii) and (c)(1)(iv) are redesignated as

paragraphs (c)(1)(i) and (c)(1)(ii), respectively. Paragraph (c)(3)(i)

is amended by removing ``10 U.S.C. chapter 106'' and adding, in its

place, ``10 U.S.C. Chapter 1606''; and paragraph (c)(4) is amended by

removing ``after January 31, 1955, and before August 5, 1964, or after

May 7, 1975, and Sec. 3.306(b) based on service rendered during the

Vietnam era'' and adding, in its place, ``after May 7, 1975''; and the

authority citation following paragraph (c)(4) is revised to read as

follows:

Sec. 3.315 Basic eligibility determinations; dependents, loans,

education.

* * * * *

(Authority: 38 U.S.C. 3011(a)(1)(A)(ii), 3012(b)(1), 3202(1)(A), 10

U.S.C. 16133(b))

Sec. 3.400 [Amended]

4. In Sec. 3.400 paragraph(d) is removed.

Sec. 3.709 [Removed]

5. Section 3.709 is removed.

Sec. 3.712 [Amended]

6. In Sec. 3.712, paragraph (a) and the heading for paragraph (b)

are removed, paragraphs (b)(1) and (b)(2) are redesignated as

paragraphs (a) and (b), respectively; the section heading is revised to

read as follows:

Sec. 3.712 Improved pension elections; surviving spouses of Spanish-

American War veterans.

* * * * *

Sec. 3.961 [Removed]

7. Section 3.961 is removed.

Sec. 3.962 [Removed]

8. Section 3.962 is removed.

Sec. 3.1000 [Amended]

9. In Sec. 3.1000, paragraph(g) is amended by removing ``10 U.S.C.

chapter 106'', and adding, in its place, ``10 U.S.C. chapter 1606''.

[FR Doc. 96-32726 Filed 12-24-96; 8:45 am]

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