Vietnam Era Definition, Medal of Honor Special Pension for Surviving Spouses, and Dependency and Indemnity Compensation (DIC) Remarriage Age, 68360-68364 [2022-24416]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Rules and Regulations]
[Pages 68360-68364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24416]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR70


Vietnam Era Definition, Medal of Honor Special Pension for 
Surviving Spouses, and Dependency and Indemnity Compensation (DIC) 
Remarriage Age

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its 
adjudication regulations by revising the definition of the Vietnam era, 
extending the payment of Medal of Honor special pension to an eligible 
surviving spouse, and extending eligibility for dependency and 
indemnity compensation (DIC) to surviving spouses who remarry after age 
55. These amendments incorporate legislative updates enacted by the 
Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits 
Improvement Act of 2020. Amendments to regulations regarding the 
definition of Vietnam era and the retention of eligibility to DIC 
benefits following the remarriage of a surviving spouse after a certain 
age bring federal regulations into conformance with the statutory 
changes. Similarly, the Medal of Honor special pension regulatory 
amendments extend eligibility for that benefit to a surviving spouse of 
a Medal of Honor recipient as required by law.

DATES: 
    Effective date: This rule is effective November 15, 2022.
    Applicability date: The provisions of this final rule shall apply 
to all applications for benefits pending before VA or a Federal 
appellate court on or after January 5, 2021, unless otherwise noted.

FOR FURTHER INFORMATION CONTACT: Eric Baltimore, Program Analyst, 
Pension and Fiduciary Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420, 202-632-8863 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The Johnny Isakson and David P. Roe, M.D. 
Veterans Health Care and Benefits Improvement Act of 2020, Public Law 
116-315, 134 Stat. 4967 (herein referred to as ``the Act''), was 
enacted on January 5, 2021. Sections 2001, 2003, and 2009 of the Act 
amended sections 101(29)(A), 1562(a), 1562(d), 1562(f)(1), 103(d)(5), 
and 103(d)(2)(B) of title 38, U.S.C. To incorporate these amendments, 
VA amends its regulations governing the definition of the Vietnam era, 
Medal of Honor special pension benefits for surviving spouses, and the 
remarriage age for surviving spouses eligible to receive DIC benefits.

Definition of Vietnam Era

    Section 2001 of the Act amended 38 U.S.C. 101(29)(A) by revising 
the definition of Vietnam era to ``[t]he period beginning November 1, 
1955, and ending on May 7, 1975, in the case of a veteran who served in 
the Republic of Vietnam during that period.'' VA amends 38 CFR 3.2 to 
incorporate this change.
    VA administers several benefit programs, including Veterans and 
Survivors Pension, in which benefits are payable to veterans and their 
survivors based, in part, on whether the veteran served during a period 
of war, including the Vietnam era. See 38 U.S.C. 101(11) (defining 
period of war). For example, eligibility for pension benefits requires 
that the veteran served in the active military, naval, air, or space 
service--(1) for ninety days or more during a period of war; (2) during 
a period of war and was discharged or released from such service for a 
service-connected disability; (3) for a period of ninety consecutive 
days or more and such period began or ended during a period of war; or 
(4) for an aggregate of ninety days or more in two or more separate 
periods of service during more than one period of war. See 38 U.S.C. 
1521(j). The definition of the Vietnam era also impacts numerous other 
VA benefits tied to service during a period of war, to include 
disability compensation under Chapter 11, and DIC under Chapter 13.
    Previously, the Vietnam era was defined as ``[t]he period beginning 
on February 28, 1961, and ending on May 7, 1975, in the case of a 
veteran who served in the Republic of Vietnam during that period.'' 38 
U.S.C. 101(29) (2020). Under the amended definition of the Vietnam era, 
which now begins on November 1, 1955, additional veterans who served in 
the Republic of Vietnam and their eligible survivors now qualify for 
the above-mentioned benefits.
    VA amends 38 CFR 3.2 to incorporate the new statutory definition of 
Vietnam era. Because the Act did not amend the definition of Vietnam 
era in 38 U.S.C. 1831(3), that definition remains unchanged for 
purposes of administering benefits under Chapter 18 of Title 38, United 
States Code. Accordingly, VA is not amending the definition of Vietnam 
veteran in 38 CFR 3.814 and 3.815.

[[Page 68361]]

Medal of Honor Special Pension for Surviving Spouses

    Section 2003 of the Act amended 38 U.S.C. 1562 to expand 
entitlement for Medal of Honor special pension (MOHP) to eligible 
surviving spouses. If a veteran dies while eligible for MOHP or if a 
veteran is posthumously awarded a Medal of Honor for distinguished 
military service by the Secretary of the military branch in which the 
veteran served, then the veteran's eligible surviving spouse is now 
entitled to receive the MOHP benefit. VA amends 38 CFR 3.802 to 
incorporate this change.
    Prior to the Act, MOHP was only awarded to veterans or 
servicemembers whose name had been entered on the Army, Navy, Air 
Force, and/or Coast Guard Medal of Honor Rolls, with minor revisions 
since its original establishment on September 2, 1958. See Public Law 
85-857, 72 Stat. 1140. The Act extended eligibility for MOHP to 
surviving spouses of veterans whose name has been recorded on a Medal 
of Honor Roll of the Army, Navy, Air Force, and/or Coast Guard, either 
while the veteran was living or posthumously. A surviving spouse, for 
MOHP purposes, must satisfy the definition of surviving spouse in 38 
U.S.C. 101(3), implemented by 38 CFR 3.50 through 3.60, including the 
requirement that the individual was married to a Medal of Honor 
recipient at the time of the veteran's death. In addition, the 
surviving spouse must meet the special section 1562 requirement that 
the marriage lasted for one year or more prior to the veteran's death, 
or for any period of time if a child was born of the marriage or was 
born to the surviving spouse and veteran before the marriage. See 38 
U.S.C. 1562(a)(2)(B). VA amends 38 CFR 3.802(c) to incorporate the 
statutory eligibility criteria.
    VA also amends Sec.  3.55 to incorporate amendments to 38 U.S.C. 
103(d), regarding exceptions to the remarriage bar in section 101(3). 
See Act, section 2003(b)(2)(B); 38 CFR 3.50(b)(2). The amendment to 
section 103(d) provides that, in addition to any other applicable 
exceptions, the surviving spouse is not barred from entitlement to MOHP 
due to (a) remarriage terminated by death or divorce unless the 
Secretary determines that the divorce was secured through fraud or 
collusion; (b) remarriage after age 57; or (c) living with another 
person and holding himself or herself out openly to the public as that 
person's spouse since the death of the veteran and after September 19, 
1962, if such behavior has ceased. See 38 U.S.C. 103(d)(2)(A),(B), 
(d)(3), and (d)(5)(E). VA adds Sec.  3.55(a)(11) to reflect these 
changes.
    The Act also provides that MOHP benefits shall not be paid to a 
surviving spouse who is in receipt of benefits under 38 U.S.C. 1311 
(DIC benefits for service-connected death) or 1318 (benefits for 
survivors of certain veterans rated totally disabled at time of death). 
See Act, section 2003(b)(1)(B) (adding 38 U.S.C. 1562(a)(2)(C)). This 
exclusion is based on actual receipt of MOHP benefits, not on 
eligibility. In addition, section 1562(g) provides that a person 
entitled to MOHP may elect not to receive it. As a result, VA will 
allow a surviving spouse to make an election between MOHP and DIC 
benefits if eligible for both, as reflected in the amendment to 38 CFR 
3.802(c)(3) and the addition of 38 CFR 3.702(g). Additionally, the Act 
amends section 1562(d) to provide that a surviving spouse shall receive 
no more than one MOHP, even if they were married to more than one 
person who has been awarded a Medal of Honor. See Act, section 
2003(b)(2)(A)(i) (amending 38 U.S.C. 1562(d)). VA amends 38 CFR 
3.802(b) to incorporate this limitation.
    Section 2003(b)(3) of the Act precludes MOHP payments to a 
surviving spouse for time periods prior to January 5, 2021, the date of 
enactment. See 38 U.S.C. 1562, note. This limitation applies without 
qualification to ``payment of pension'' under section 1562 to a 
surviving spouse. Id. Accordingly, the limitation applies to lump sum 
payments under section 1562(f) in the case of a posthumous entry of the 
veteran on a Medal of Honor Roll, because section 1562(f) payments are 
``special pension'' payments per section 1562(f)(2). This limitation is 
reflected in 38 CFR 3.802(c)(4) and (d)(2).
    VA revises 38 CFR 3.802(a) to reflect that the Coast Guard official 
who certifies a veteran's acceptance on the Coast Guard Medal of Honor 
Role is ``the Secretary of the Department in which the Coast Guard is 
operating,'' rather than the Secretary of the Department of 
Transportation. This technical amendment aligns the language of the 
regulation with the statute governing military Honor Role 
certifications, 10 U.S.C. 1134a. Section 1134a(a) references the 
``Secretary of the Department in which the Coast Guard is operating,'' 
in accordance with the realignment of the Coast Guard in The Homeland 
Security Act of 2002 (Pub. L. 107-296, section 888, 116 Stat. 2135), 
and the current language was incorporated into section 1134a in 2013. 
See Public Law 113-66, section 563,127 Stat. 767.
    VA also revises 38 CFR 3.802(b) to conform the language specifying 
the beginning date of MOHP payments to the current language of 38 
U.S.C. 1562(a)(1). The beginning date of MOHP payments in the 
regulation is changed from the date VA received the application to 
``the date on which the person's name is entered on the Army, Navy, Air 
Force, and Coast Guard Medal of Honor Roll.'' This change aligns the 
regulation with the amendments to 38 U.S.C. 1562(a)(1), effective 
December 26, 2013, made by the National Defense Authorization Act for 
Fiscal Year 2014 (Pub. L. 113-66, section 563(b)(1)(D), 127 Stat. 767), 
which has been implemented to date through internal VA adjudication 
guidance. This regulation change is applicable with respect to a Medal 
of Honor awarded on or after December 26, 2013 (the enactment date of 
Pub. L. 113-66), to parallel the applicability date of the statutory 
change. See Public Law 113-66, section 553(d).
    In sum, in order to align the regulation for adjudicating claims 
with amended 38 U.S.C. 1562, VA amends 38 CFR 3.802 and 3.55 to 
incorporate MOHP eligibility for surviving spouses under the parameters 
established by the Act. The changes include adding a definition of an 
eligible surviving spouse for MOHP purposes, provisions concerning 
payment and eligibility dates, and other amendments to conform 
regulatory text with current legislative text.

DIC Remarriage Age Change

    Section 2009 of the Act amended 38 U.S.C. 103 to expand surviving 
spouse eligibility for DIC benefits, where the surviving spouse has 
remarried following the death of the veteran. Whereas prior to the 
amendment, remarriage after the age of 57 was not a bar to DIC 
benefits, the amendment lowers that age to 55. VA amends 38 CFR 3.55 to 
implement the statutory change.
    DIC benefits are generally payable to a surviving spouse, child, or 
parent of a veteran whose death was service-connected and occurred on 
or after January 1, 1957, or before January 1, 1957, if the survivor 
elects to receive DIC in lieu of Death Compensation. This benefit may 
also be payable due to a veteran's death which occurred following a 
continuously rated totally disabling condition for the period required 
by 38 U.S.C.1318. DIC benefits are paid to an eligible surviving spouse 
defined by 38 CFR 3.50 as an individual who lived with the veteran 
continuously from the date of marriage to the date of the veteran's 
death and

[[Page 68362]]

has not remarried since the death of the veteran, except in certain 
circumstances as provided in 38 CFR 3.55. If an individual ceases to be 
a surviving spouse due to remarriage, DIC is generally discontinued 
effective the last date of the month prior to the remarriage. 38 U.S.C. 
5112(b)(1). However, Congress created an exception to this rule in 
2003, providing that remarriage after age 57 does not bar receipt of 
DIC to otherwise eligible surviving spouses. Public Law 108-183, 
section 101 (Veterans Benefits Act of 2003). The Act lowers this age to 
55, effective January 5, 2021.
    The Act's expansion of DIC liberalizes the benefit criteria. A 
liberalizing VA law generally gives rise to a new benefit claim for 
those impacted by the change. Routen v. West, 142 F.3d 1434 (Fed. Cir. 
1998); Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994) (``[t]he 
applicant's later claim, asserting rights which did not exist at the 
time of the prior claim, is necessarily a different claim''). A 
claimant previously denied DIC based on remarriage may, if the 
statutory amendment impacts eligibility, file a new application for the 
benefit without the need to supply new and relevant evidence. Ortiz v. 
McDonough, 6 F.4th 1267, 1270-71 (Fed. Cir. 2021). For example, a 
claimant denied DIC prior to the Act based on remarriage between the 
ages of 55 and 57 generally may, after January 5, 2021, file a new 
claim. The effective date of an award based on the Act's change in DIC 
eligibility criteria is governed by special provisions applicable to 
changes in law. Id. at 1270-71. Under 38 U.S.C. 5110(g) and 38 CFR 
3.114, the effective date depends on a number of factors, but generally 
may not be earlier than January 5, 2021, the effective date of the Act.
    The exception for remarriage after age 55 applies regardless of 
when the remarriage occurred, whether before, on, or after January 5, 
2021. The Act does not limit the exception to remarriages occurring 
after the Act's effective date of January 5, 2021. Similarly, the 
amendments to 38 CFR 3.55 do not contain such a limitation. We note 
that the Act contrasts in this regard with the Veterans Benefits Act of 
2003, which first established the age-related remarriage exception for 
DIC benefits. Public Law 108-183. There, Congress specified that 
claimants whose remarriage qualified for the new statutory exception, 
but occurred before that law was enacted, had one year to file a new 
claim in order to benefit from the rule. Public Law 108-183, section 
101(e). The Act contains no filing limitation. Thus, for DIC 
applications filed after January 5, 2021, the filing limitation 
contained in the Veterans Benefits Act of 2003 is not relevant. Even if 
that limitation previously barred a claimant from DIC, it would not bar 
a new application for DIC benefits filed after January 5, 2021. Nothing 
in the Act, however, creates the basis for a claim of clear and 
unmistakable error in a VA claim that was finally adjudicated prior to 
January 5, 2021. See, e.g. George v. McDonough, 142 S. Ct. 1953 (2022).
    In order to align the regulation for adjudicating claims with 
amended 38 U.S.C. 103, VA amends 38 CFR 3.55 to explicitly provide that 
an eligible surviving spouse that remarries after age 55 (irrespective 
if said marriage took place before, on, or after January 5, 2021), is 
not barred from entitlement to DIC benefits.

Administrative Procedure Act

    The Secretary of Veterans Affairs has found that there is good 
cause to publish this rule without opportunity for public comment under 
the provisions of 5 U.S.C. 553(b)(B), allowing an exception where an 
agency finds that notice and comment is ``impractical, unnecessary, or 
contrary to the public interest.'' The Act liberalizes specific VA 
benefits under specific mandatory parameters, as outlined above, and is 
self-implementing. This rule simply conforms VA's regulations to 
incorporate the new statutory standards, without creation of rules 
beyond the plain language of the statute or the exercise of substantive 
policy discretion. To date, the new standards are incorporated only in 
internal agency adjudication guidance. Thus, while VA recognizes 
generally that the public has an interest in the opportunity to 
comment, in this case notice and comment rulemaking is unnecessary and 
would delay conformance of VA regulations to the clear terms of the 
amended statutes.
    The Secretary has also found that a 30-day delayed effective date 
is not required under 5 U.S.C. 553(d), which excepts ``(1) a 
substantive rule which grants or recognizes an exemption or relieves a 
restriction; (2) interpretative rules and statements of policy; or (3) 
as otherwise provided by the agency for good cause found and published 
with the rule.'' Because this rule liberalizes VA benefits in 
accordance with statutory changes that are already in effect, the 
Secretary finds that a delayed effective date is not required pursuant 
to section 553(d)(1) and (3).
    For the foregoing reasons, the Secretary of Veterans Affairs is 
issuing this rule as a final rule with an immediate effective date.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Paperwork Reduction Act

    Although this final rule contains collection of information under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521), there are no provisions associated with this rulemaking 
constituting any new collection of information or any revisions to the 
existing collection of information. The collection of information for 
38 CFR 3.55 is currently approved by the Office of Management and 
Budget (OMB) and has been assigned OMB control 2900-0495.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable 
to this rulemaking because notice of proposed rulemaking is not 
required. 5 U.S.C. 601(2), 603(a), 604(a).

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 issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Assistance Listing

    The Assistance Listing numbers and titles for the programs affected 
by this document are: 64.104, Pension for Non-Service-Connected 
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, 
and Children;

[[Page 68363]]

64.109, Veterans Compensation for Service-Connected Disability; and 
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not a major rule, as defined by 5 U.S.C. 
804(2).

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on November 3, 2022, and authorized the undersigned to sign 
and submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR part 3 as 
set forth below:

PART 3--ADJUDICATION

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

0
1. The authority citation for part 3, subpart A, continues to read as 
follows:

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


0
2. Amend Sec.  3.2 by revising paragraph (f) to read as follows:


Sec.  3.2  Periods of war.

* * * * *
    (f) Vietnam era. The period beginning on November 1, 1955, and 
ending on May 7, 1975, inclusive, in the case of a veteran who served 
in the Republic of Vietnam during that period. The period beginning on 
August 5, 1964, and ending on May 7, 1975, inclusive, in all other 
cases.

(Authority: 38 U.S.C. 101(29))

* * * * *

0
3. Amend Sec.  3.55 by:
0
a. Removing the heading from paragraph (a)(9);
0
b. Adding paragraph (a)(9)(iii);
0
c. Revising paragraph (a)(10); and
0
d. Adding paragraph (a)(11).
    The revision and additions read as follows:


Sec.  3.55  Reinstatement of benefits eligibility based upon terminated 
marital relationships.

    (a) * * *
    (9) * * *
    (iii) The remarriage of a surviving spouse after the age of 55 (at 
any time) shall not bar the furnishing of benefits under 38 U.S.C. 
chapter 13 to such person as the surviving spouse of the veteran.
    (10)(i) On or after January 1, 2004, the remarriage of a surviving 
spouse after the age of 57 shall not bar the furnishing of benefits 
relating to medical care for survivors and dependents under 38 U.S.C. 
1781, educational assistance under 38 U.S.C. chapter 35, or housing 
loans under 38 U.S.C. chapter 37, subject to the limitation in 
paragraph (a)(10)(ii) of this section.
    (ii) A surviving spouse who remarried after the age of 57, but 
before December 16, 2003, may be eligible for medical care for 
survivors and dependents under 38 U.S.C. 1781, educational assistance 
under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 
pursuant to paragraph (a)(10)(i) of this section only if the 
application for such benefits was received by VA before December 16, 
2004.

(Authority: 38 U.S.C. 103)

    (11) A surviving spouse will not be barred from benefits relating 
to Medal of Honor special pension under 38 U.S.C. 1562(a)(2) due to:
    (i) Remarriage after the age of 57;
    (ii) Remarriage terminated by death or divorce, unless the 
Secretary determines that the divorce or annulment was secured through 
fraud or collusion; or
    (iii) Having lived with another person and held himself or herself 
out openly to the public as the spouse of such other person since the 
death of the veteran and after September 19, 1962, if he or she ceases 
living with such other person and holding himself or herself out openly 
to the public as the other person's spouse.

(Authority: 38 U.S.C. 103(d)(2) and 38 U.S.C. 103(d)(3))

* * * * *

0
4. Amend Sec.  3.702 by revising paragraph (d)(1) and adding paragraph 
(g) to read as follows:


Sec.  3.702  Dependency and indemnity compensation.

* * * * *
    (d) * * *
    (1) Except as noted in paragraphs (d)(2) and (g) of this section, 
an election to receive dependency and indemnity compensation is final 
and the claimant may not thereafter reelect death pension or 
compensation in that case. An election is final when the payee (or the 
payee's fiduciary) has negotiated one check for this benefit or when 
the payee dies after filing an election but prior to negotiation of a 
check.
* * * * *
    (g) Medal of Honor pension. A surviving spouse who qualifies for 
dependency and indemnity compensation under 38 U.S.C. 1311 or 1318 may, 
by notifying the Secretary in writing, elect to receive instead Medal 
of Honor pension, if entitled to such pension. See also Sec.  
3.802(c)(2) and (3).

(Authority: 38 U.S.C. 1562(a)(2)(C))

* * * * *

0
5. Revise Sec.  3.802 to read as follows:


Sec.  3.802  Medal of Honor.

    (a) The Secretary of the Department of the Army, the Department of 
the Navy, the Department of the Air Force, or the Department in which 
the Coast Guard is operating will determine the eligibility of 
applicants to be entered on the Medal of Honor Roll and will deliver to 
the Secretary of the Department of Veterans Affairs a copy of each 
certificate issued in which the right of the person named in the 
certificate to the special pension is set forth. The special pension 
will be authorized on the basis of such certification. A surviving 
spouse may be eligible for special pension in accordance with paragraph 
(c) of this section.

(Authority: 10 U.S.C. 1134a; 38 U.S.C. 1562)


    (b) An award of special pension at the monthly rate specified in 38 
U.S.C. 1562 will be made beginning as of the date on which the person's 
name is entered on the Army, Navy, Air Force, and/or Coast Guard Medal 
of Honor Roll. The special pension will be paid in addition to all 
other payments under laws of the United States. However, a person 
awarded more than one Medal of Honor, or a person married to more than 
one person who has been awarded a Medal of Honor, may not receive more 
than one special pension. A person who is entitled to special pension 
under paragraph (a) of this section may elect not to receive special 
pension by notifying the Secretary of such election in writing.

(Authority: 38 U.S.C. 1562)


    (c) Except as provided in paragraphs (c)(1) and (2) of this 
section, the Secretary shall pay special pension under this section to 
the surviving

[[Page 68364]]

spouse (as defined in Sec.  3.50(b)) of a person whose name has been 
entered on the Army, Navy, Air Force, and/or Coast Guard Medal of Honor 
Roll and a copy of whose certificate has been delivered to the 
Secretary under 10 U.S.C. 1134a(d).
    (1) No special pension shall be paid to a surviving spouse of a 
person under this section unless such surviving spouse was married to 
such person--
    (i) For one year or more prior to the veteran's death; or
    (ii) For any period of time if a child was born of the marriage, or 
was born to them before the marriage.
    (2) No special pension shall be paid to a surviving spouse of a 
person under this section if such surviving spouse is receiving 
dependency and indemnity compensation under 38 U.S.C. 1311 or 1318.
    (3) A surviving spouse who qualifies for Medal of Honor pension 
may, by notifying the Secretary in writing, elect to receive instead 
dependency and indemnity compensation under 38 U.S.C. 1311 or 1318, if 
entitled to such compensation. See also Sec.  3.702(g).
    (4) Special pension, including any lump sum payment under paragraph 
(d) of this section, may only be paid to a surviving spouse for months 
beginning after January 5, 2021.

(Authority: 38 U.S.C. 1562 and note)


    (d)(1) VA will pay to each veteran or service member who is 
receiving or who in the future receives Medal of Honor pension a 
retroactive lump sum special pension payment equal to the total amount 
of Medal of Honor pension that person would have received during the 
period beginning the first day of the month after the date of the event 
for which the veteran earned the Medal of Honor and ending on the last 
day of the month preceding the month in which pension was awarded under 
paragraphs (b) and (c) of this section.
    (2) VA will calculate the veteran's or service member's lump sum 
payment using the monthly Medal of Honor pension rates in effect from 
the first day of the month after the date of the event for which the 
veteran or service member earned the Medal of Honor, to the last day of 
the month preceding the month in which the individual was initially 
awarded the Medal of Honor pension under paragraph (b) of this section. 
VA will not make a retroactive lump sum payment under this paragraph 
(d)(2) before October 1, 2003.

(Authority: 38 U.S.C. 1562(f))


    (e) In the case of a posthumous entry on a qualifying Medal of 
Honor Roll, VA will pay to each surviving spouse who is receiving or 
who in the future receives Medal of Honor pension under paragraph (c) 
of this section a retroactive lump sum payment using the monthly Medal 
of Honor pension rates in effect from the first day of the month after 
the date of the event for which the veteran or service-member earned 
the Medal of Honor, to the last day of the month preceding the month in 
which the surviving spouse was initially awarded the Medal of Honor 
pension. VA will not make a retroactive posthumous lump sum payment 
under this paragraph (e) for periods before February 1, 2021.

(Authority: 38 U.S.C. 1562(f) and 1562 note)


[FR Doc. 2022-24416 Filed 11-14-22; 8:45 am]
BILLING CODE 8320-01-P