Instruction of the Secretary and General Policy Statement on the Administration of Benefits for Particular Same-Sex Surviving Spouses, 68904-68908 [2022-24865]

Download as PDF 68904 Federal Register / Vol. 87, No. 221 / Thursday, November 17, 2022 / Rules and Regulations PART 1—RULES OF PRACTICE IN PATENT CASES Eastern Daylight Time in the United States, as appropriate. 1. The authority citation for 37 CFR part 1 continues to read as follows: Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. ■ Authority: 35 U.S.C. 2(b)(2), unless otherwise noted. [FR Doc. 2022–24335 Filed 11–16–22; 8:45 am] 2. In 37 CFR part 1, remove ‘‘Office’s electronic filing system’’ and ‘‘Office electronic filing system’’ wherever they appear and add in their place ‘‘USPTO patent electronic filing system.’’ ■ 3. Section 1.1 is amended by revising paragraph (a) introductory text to read as follows: BILLING CODE 3510–16–P DEPARTMENT OF VETERANS AFFAIRS ■ § 1.1 Addresses for non-trademark correspondence with the United States Patent and Trademark Office. (a) In general. Except for correspondence submitted via the U.S. Patent and Trademark Office (USPTO) patent electronic filing system in accordance with § 1.6(a)(4), all correspondence intended for the USPTO must be addressed to either ‘‘Director of the United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313–1450’’ or to specific areas within the Office as provided in this section. When appropriate, correspondence should also be marked for the attention of a particular office or individual. * * * * * 4. Section 1.6 is amended by revising paragraph (a)(4) to read as follows: ■ § 1.6 Receipt of correspondence. (a) * * * (4) Correspondence may be submitted using the USPTO patent electronic filing system only in accordance with the USPTO patent electronic filing system requirements. Correspondence officially submitted to the Office by way of the USPTO patent electronic filing system will be accorded a receipt date, which is the date in Eastern Time when the correspondence is received in the Office, regardless of whether that date is a Saturday, Sunday, or Federal holiday within the District of Columbia. * * * * * lotter on DSK11XQN23PROD with RULES1 * * * * (o) Eastern Time as used in this chapter means Eastern Standard Time or VerDate Sep<11>2014 16:17 Nov 16, 2022 Jkt 259001 AGENCY: ACTION: Department of Veterans Affairs. General policy statement. The Department of Veterans Affairs (VA) announces that the Secretary of Veterans Affairs issued Instruction 01–22 on October 11, 2022, which addresses the legal impediment that exists for certain same sexsurviving spouses to qualify for Survivors Pension or Dependency and Indemnity Compensation (DIC) benefits due to not meeting the duration of marriage requirements for those benefits because they were prevented from marrying at an earlier date by reason of laws that have been found to be unconstitutional. Additionally, VA announces Pension and Fiduciary Service’s general policy statement on the administration of Veterans Benefits Administration (VBA) benefits for particular same-sex surviving spouses. SUMMARY: The Pension and Fiduciary Service’s general policy statement is effective November 17, 2022. DATES: FOR FURTHER INFORMATION CONTACT: Kevin Baresich, 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.) Instruction of the Secretary 01–22 Definitions. * Instruction of the Secretary and General Policy Statement on the Administration of Benefits for Particular Same-Sex Surviving Spouses SUPPLEMENTARY INFORMATION: 5. Section 1.9 is amended by: ■ a. Adding paragraph (o); and ■ b. Removing the parenthetical authority citation at the end of the section. The revision reads as follows: ■ § 1.9 38 CFR Part 3 Notice is given that the Secretary of Veterans Affairs issued Instruction of the Secretary 01–22—Instructions for Determining Whether Same-Sex Surviving Spouses Satisfy Duration of Marriage Requirements, on October 11, 2022. The text of Instruction 01–22 appears at the end of this Federal Register document. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 Background On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Accordingly, on October 16, 2015, VBA issued VBA Letter 20–15–16 which recognized that same-sex marriages will be accepted in benefit determinations without regard to a Veteran’s state of residence. This guidance remains in effect. VBA administers benefits and programs for the surviving spouse of a Veteran which incorporate evaluations to determine the legality and duration of a marriage. Determining the duration of a marriage is required to establish entitlement to Survivors Pension, DIC, or the higher rate of DIC benefits under 38 U.S.C. 1311(a)(2) (heretofore referred to as the 8x8 allowance). The rules in 38 U.S.C. 1541(f)(2), 1304(2), and 1318(c)(1) are the foundational statutory sources providing 1-year duration of marriage requirements for a surviving spouse to qualify for Survivors Pension and DIC. The requirement for the 8x8 allowance under 38 U.S.C. 1311(a)(2) further stipulates that a surviving spouse must have been married to a Veteran for at least a continuous 8-year period immediately preceding the Veteran’s death during which a Veteran was rated totally disabled for a serviceconnected disability. This increase for DIC benefits originated from section 102 of Public Law 102–568 passed on October 29, 1992, and the governing statute has maintained the same 8-year duration requirement since that time. As a result, under statutory requirements currently in effect, a samesex surviving spouse who was only able to marry after the Supreme Court’s decision in Obergefell would be unable to meet the 1-year marriage duration requirement until June 26, 2016, for Survivors Pension and DIC benefits, and would similarly be unable to satisfy the 8-year marriage duration requirement for the 8x8 allowance until June 26, 2023, at the earliest. This results in potential disparate treatment for samesex surviving spouses who may have otherwise qualified for Survivors Pension, DIC, or the additional 8x8 allowance if they were not prevented from marrying at an earlier date by reason of laws that have been found to be unconstitutional. As provided within VBA Letter 20– 15–16, VBA updated procedures on E:\FR\FM\17NOR1.SGM 17NOR1 Federal Register / Vol. 87, No. 221 / Thursday, November 17, 2022 / Rules and Regulations processing benefit claims involving same-sex marriages following the June 26, 2015, Supreme Court decision in Obergefell v. Hodges. Since that time, entitlement to VBA benefits has been granted based on the legal authorization of same-sex marriages. However, in some cases, there is a legal impediment for a same-sex surviving spouse to qualify for Survivors Pension or DIC benefits due to not meeting the corresponding marriage duration requirements. A more pronounced impediment exists for the higher rate of DIC benefits for the 8x8 allowance due to a marriage duration requirement that is currently wholly unattainable for those individuals who were unable to marry prior to Obergefell. In Instruction 01–22, issued on October 11, 2022, the Secretary instructed the Department to interpret the laws governing duration of marriage requirements in a manner that avoids unfairness to certain same-sex claimants by not giving effect to State laws that have been determined to be unconstitutional. The Instruction explained that while 38 U.S.C. 103 directs VA to look to State law, the Secretary presumes that Congress did not intend VA to apply those laws that have been determined to be unconstitutional to a survivor’s detriment. Therefore, based on the Instruction, VBA is establishing this general policy statement, which provides instructions and procedures for processing Survivors Pension, DIC, or the 8x8 allowance determinations for particular same-sex surviving spouses. lotter on DSK11XQN23PROD with RULES1 Instructions for Determining Whether Same-Sex Surviving Spouses Satisfy Duration of Marriage Requirements Under 38 U.S.C. 5124(a), VBA may accept the written statement of a claimant’s marriage to another individual as proof of the existence of the relationship. This statute is implemented under 38 CFR 3.204(a). To establish marriage under § 3.204(a), VBA requires only a statement by the claimant that includes the date and place of marriage and the name and social security number of the person the claimant has identified as their spouse. The only instances when VBA will not accept a claimant’s statement that they are married as being sufficient evidence to establish the claimant’s marriage is when the claimant’s statement on its face raises a question of validity, the claimant’s statement conflicts with other evidence in the record, or there is a reasonable indication of fraud or misrepresentation. In these instances, VBA requires more information, per 38 CFR 3.204(a)(2). VerDate Sep<11>2014 16:17 Nov 16, 2022 Jkt 259001 As previously stated, the Supreme Court’s decision in Obergefell, which allowed VBA to provide spousal benefits to same-sex couples, has impacted survivor benefit claims. Therefore, for survivors claims, current VBA policy allows the acceptance of a written statement asserting the marital relationship but requires a determination on whether the same-sex marriage satisfies the requirements of 38 CFR 3.50(b)(1) and (2) and 3.54. Proof of marriage requirements can also be satisfied by including the types of evidence outlined in 38 CFR 3.205(a). Thus, in keeping with these regulatory provisions, VBA will first determine eligibility for benefits by determining the existence of a marriage pursuant to 38 CFR 3.204, and then, as described in more detail below, by calculating the duration of a same-sex marriage in a liberal manner, including the application of 38 CFR 3.205(a)(6) and (7). Qualifying for Survivors Pension, DIC, or the 8x8 Allowance The acceptance of a valid marriage for a same-sex surviving spouse is currently not an obstacle to establishing basic entitlement for benefits. In accordance with the instructions provided in Instruction 01–22, this general policy statement addresses the marriage duration legal impediment for a samesex surviving spouse seeking Survivors Pension, DIC, or the 8x8 allowance which exists due to now unconstitutional laws within U.S. states and territories that prevented an earlier marriage. In particular, a same-sex surviving spouse may be unable to meet the duration requirement of being married to a Veteran for 1 year or more prior to the Veteran’s death under 38 CFR 3.54 to qualify for Survivors Pension or DIC benefits; or may be unable to fulfill 38 U.S.C. 1311(a)(2) for the 8x8 allowance due to the inability of establishing a marriage for a consecutive 8-year time period. U.S. states and territories maintained varying same-sex marriage provisions prior to Obergefell. In seeking an approach that prevents disparate impact and enables a consistent and equitable application, VBA will utilize the date for the precedential Obergefell decision, June 26, 2015, as the general delimiting date for policy determinations for particular same-sex marriage duration situations. VBA also acknowledges that it may have been impracticable for same-sex couples to have entered a marriage immediately after Obergefell was decided. As such, VBA will apply these policy considerations in the case of any samesex surviving spouse who married a PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 68905 Veteran within two years of Obergefell, i.e., by June 26, 2017. The Secretary signed Instruction 01– 22 to address the concerns noted above, while ensuring maximum consistency with the statutory requirement regarding duration of marriage, by requiring VBA to consider a marriage duration requirement to be satisfied when there is satisfactory evidence that a same-sex surviving spouse was effectively in a marital relationship for the specified period, supporting a conclusion that they would have been legally married for that period but for the unconstitutional laws of U.S. states or territories. In applying the standard set by the Instruction, VBA’s general policy statement will follow the same evidentiary rules applicable in establishing any marital relationship. A same-sex surviving spouse will be required to provide verification that they were legally married to the Veteran at the time of the Veteran’s death; that they held themselves out to the public as being in a committed relationship akin to that of marriage; and that they cohabitated, as evidenced through statements of persons in the community who knew the parties as akin to spouses and documents which show that the parties represented themselves as being in a committed relationship akin to that of marriage (see evidence requirements in 38 CFR 3.205(a)), for a minimum of 1 year prior to the Veteran’s death for Survivors Pension and DIC entitlement. The Secretary’s instructions will similarly be applied in the general policy statement by awarding the 8x8 allowance if the surviving spouse is able to provide the same verification for a period of 8 consecutive years prior to the Veteran’s death during which time the Veteran was rated totally disabled for a service-connected disability. The Instruction outlines that verification of the status of the relationship to establish entitlement to Survivors Pension, DIC, or the 8x8 allowance will utilize pertinent existing procedural requirements for establishing the validity of a marriage relationship. Under those procedures, VA requires the claimant to provide the following: • VA Form 21–4170, • Two copies of VA Form 21P–4171 to be completed by two persons who know, as the result of personal observation, the relationship that existed between the parties, and • Document(s) which show that the parties represented themselves as in a relationship akin to that of marriage. The verification requirements decreed by the Secretary in Instruction 01–22, which serves as the basis for this general E:\FR\FM\17NOR1.SGM 17NOR1 68906 Federal Register / Vol. 87, No. 221 / Thursday, November 17, 2022 / Rules and Regulations policy statement, afford a relaxed application of the standard within 38 U.S.C. 1541(f)(1), 1304(2), and 1318(c)(1), as well as 38 CFR 3.54 used to grant Survivors Pension and DIC will be applicable for same-sex marriages which occurred up through June 26, 2017. This same principle will be applied to 38 U.S.C. 1311(a)(2) to grant the 8x8 allowance, and thus the liberalized standard with respect to claims under that provision based on deaths occurring on or before June 26, 2025, will be applied. In some cases, such as those involving domestic partnerships or civil unions, VBA cannot recognize a marriage in a survivor’s claim under 38 U.S.C. 103(c), but the case may raise the question of whether the marriage may be considered a ‘‘deemed valid’’ marriage under 38 U.S.C. 103(a). VBA will apply the same rules stated in the general policy statement for determining whether a marital relationship satisfies the duration requirements for Survivors Pension, DIC, or the 8x8 allowance for a same-sex domestic partnership or civil union if it was considered a ‘‘deemed valid’’ marriage under 38 U.S.C. 103(a). In a similar treatment, if the surviving spouse indicates that their same-sex marriage is a common-law marriage, claims processors must determine whether the same-sex relationship qualifies as a common-law marriage. See evidence requirements in 38 CFR 3.205(a). Claims processors may seek guidance from district counsel as needed. VBA will apply the same rules stated in the general policy statement for determining whether a marital relationship satisfies the duration requirements for Survivors Pension, DIC, or the 8x8 allowance for a same-sex common-law marriage that meets the verification requirements identified within 38 CFR 3.205(a). lotter on DSK11XQN23PROD with RULES1 Text of Instruction of the Secretary 01– 22 Subject: Instructions for Determining Whether Same-Sex Surviving Spouses Satisfy Duration of Marriage Requirements Purpose 1. In some cases, there is a legal impediment for a same-sex surviving spouse to qualify for Survivors Pension or Dependency and Indemnity Compensation (DIC) benefits due to not meeting the corresponding marriage duration requirements. A more pronounced impediment exists for the higher rate of DIC benefits under 38 U.S.C. 1311(a)(2) (hereinafter referred to as the 8x8 allowance) due to a marriage duration requirement that is wholly VerDate Sep<11>2014 16:17 Nov 16, 2022 Jkt 259001 unattainable for some individuals who were unable to marry prior to the United States Supreme Court’s decision in Obergefell v. Hodges. Recognizing that certain same-sex surviving spouses were prevented from marrying at an earlier date by reason of laws that have been found to be unconstitutional, I am instructing Department of Veterans Affairs (VA or the Department) employees to adjudicate claims in a manner that will avoid unfairness to those individuals by not giving effect to those unconstitutional laws. This Instruction provides directions and procedures for making Survivors Pension, DIC, or the 8x8 allowance determinations for particular same-sex surviving spouses. Background 2. On September 4, 2013, the United States Attorney General announced that the President had directed the Executive Branch to cease enforcement of 38 U.S.C. 101(3) and 101(31), which defined the terms ‘‘surviving spouse’’ and ‘‘spouse’’ for purposes of Veterans benefits as referring only to a person of the opposite sex, to the extent they precluded provision of Veterans’ benefits to same-sex married couples. Accordingly, VA ceased to enforce 38 U.S.C. 101(3) and 101(31) and the implementing regulation (38 CFR 3.50), to the extent that they precluded provision of Veterans’ benefits to samesex married couples. The Attorney General’s announcement allowed VA to administer spousal and survivors’ benefits to same-sex married couples, provided their marriages otherwise met the requirements of 38 U.S.C. 103(c). 3. On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Accordingly, on October 16, 2015, the Veterans Benefits Administration (VBA) issued VBA Letter 20–15–16 which updated procedures on processing benefit claims involving same-sex marriages and recognized that same-sex marriages will be accepted in benefit determinations without regard to a Veteran’s state of residence. This guidance remains in effect. 4. VA administers benefits and programs for the surviving spouse of a Veteran which incorporate evaluations to determine the legality and duration of a marriage. VA must determine the duration of a marriage in order to establish entitlement to Survivors PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 Pension, DIC, or the 8x8 allowance. 38 U.S.C. 1541(f)(2), 1304(2), and 1318(c)(1) are the foundational statutory sources containing one-year duration of marriage requirements for a surviving spouse to qualify for Survivors Pension and DIC. The requirement for the 8x8 allowance under 38 U.S.C. 1311(a)(2) further stipulates that a surviving spouse must have been married to a Veteran for at least a continuous eightyear period immediately preceding the Veteran’s death during which a Veteran was rated totally disabled for a serviceconnected disability. 5. As a result, under statutory requirements currently in effect, a samesex surviving spouse who was only able to marry after the Supreme Court’s decision in Obergefell would have been unable to meet the one-year marriage duration requirement until June 26, 2016, for Survivors Pension and DIC benefits, and would similarly have been unable to satisfy the eight-year marriage duration requirement for the 8x8 allowance until June 26, 2023, at the earliest. This results in potential disparate treatment for same-sex surviving spouses who may have otherwise qualified for Survivors Pension, DIC, or the additional 8x8 allowance if they were not prevented from marrying at an earlier date by reason of laws that have been found to be unconstitutional. 6. Under 38 U.S.C. 103(c), ‘‘[i]n determining whether or not a person is or was the spouse of a veteran, the marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.’’ While the statute refers to two specific points in time for determining whether the parties attained married status, it is unclear how it should be applied in determining the duration of a marriage over a period of time, particularly when the laws of the relevant place (e.g., a State) have been found to have been unconstitutional for a portion of such period. 7. The Supreme Court has stated that ‘‘where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.’’ Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). VA will follow that approach in interpreting and applying section 103(c) to durationof-marriage determinations in cases E:\FR\FM\17NOR1.SGM 17NOR1 Federal Register / Vol. 87, No. 221 / Thursday, November 17, 2022 / Rules and Regulations lotter on DSK11XQN23PROD with RULES1 where unconstitutional State laws potentially could affect such determinations. 8. After consulting with the Department of Justice, through this Instruction, I am instructing the Department not to give effect to unconstitutional laws that prevented same-sex couples from marrying when adjudicating duration of marriage issues for purposes of Survivors Pension and DIC benefits, including the 8x8 allowance. This Instruction addresses the legal impediment which a same-sex couple may face in fulfilling the marriage duration requirement under 38 U.S.C. 1541(f)(2), 1304(2), 1318(c)(1), and 1311(a)(2) as well as 38 CFR 3.10(c) and (f)(1) and 3.54. In doing so, the Department will interpret the statutes governing duration of marriage issues based on the inference that Congress did not intend VA to apply unconstitutional laws to Veterans’ detriment. Thus, this Instruction will align policy and procedures applying to particular samesex surviving spouses’ situations for Survivors Pension, DIC, or the 8x8 allowance to better conform with the Supreme Court decision in Obergefell and to adjudicate claims in a manner that will avoid unfairness to those individuals. Qualifying for Survivors Pension, DIC, or 8x8 Allowance 9. The issue this Instruction addresses is the legal impediment which exists for a same-sex surviving spouse seeking Survivors Pension, DIC, or the 8x8 allowance while being unable to meet marriage duration requirements due to a legal impediment that existed under laws now recognized as unconstitutional within U.S. states and territories. In particular, a same-sex surviving spouse may be unable to meet the duration requirement of being married to a Veteran for one year or more prior to the Veteran’s death under 38 CFR 3.54 to qualify for Survivors Pension or DIC benefits, or a same-sex surviving spouse may be unable to fulfill 38 U.S.C. 1311(a)(2) for the 8x8 allowance due to the inability to establish a marriage for a consecutive eight-year time period. Recognizing that U.S. states and territories maintained varying same-sex marriage provisions prior to Obergefell and seeking an approach that prevents disparate impact and enables a consistent and equitable application, I have decided to utilize the date of the precedential Obergefell decision, June 26, 2015, as the general date that same-sex couples were no longer prevented from marrying for purposes of this Instruction. VA also acknowledges that it may have been VerDate Sep<11>2014 16:17 Nov 16, 2022 Jkt 259001 impracticable for same-sex couples to have entered a marriage immediately after Obergefell was decided. As such, I am instructing VA to similarly apply this Instruction in the case of any samesex surviving spouse who married a Veteran up through two years after Obergefell, i.e., by June 26, 2017. 10. To address the concerns noted above, while ensuring maximum consistency with the statutory requirements regarding duration of marriage, VA will consider a marriage duration requirement to be satisfied when there is satisfactory evidence that a same-sex surviving spouse was effectively in a marital relationship for the specified period, supporting a conclusion that they would have been legally married for that period but for the unconstitutional state laws. In applying this standard, VA generally will follow the same evidentiary rules applicable in establishing any marital relationship. A same-sex surviving spouse will be required to provide verification that they were legally married to the Veteran at the time of the Veteran’s death; that they held themselves out to the public as being in a committed relationship akin to that of marriage; and that they cohabitated, as evidenced through statements of persons in the community who knew the parties as akin to spouses and documents which show that the parties represented themselves as being in a committed relationship akin to that of marriage (see evidence requirements in 38 CFR 3.205(a)), for a minimum of one year prior to the Veteran’s death for Survivors Pension and DIC. This Instruction will similarly be applied for awarding the 8x8 allowance if the surviving spouse is able to provide the same verification for a period of eight consecutive years prior to the Veteran’s death during which time the Veteran was rated totally disabled for a serviceconnected disability. 11. The verification requirements in this Instruction to afford a relaxed application of the standard within 38 U.S.C. 1541(f)(1), 1304(2), and 1318(c)(1), as well as 38 CFR 3.54 used to grant Survivors Pension and DIC, will be applicable for same-sex marriages which occurred up through June 26, 2017. This same principle will be applied to 38 U.S.C. 1311(a)(2) for purposes of the 8x8 allowance, and thus the Instruction will be applied with respect to claims under that provision based on deaths occurring on or before June 26, 2025. Applicability 12. This Instruction applies to all claims that are pending and nonfinal on PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 68907 the date of this instruction, and any original, supplemental, or other claims filed on or after the date of this Instruction, in which a same-sex surviving spouse seeks Survivors Pension and DIC based upon a marriage occurring no later than June 26, 2017. This same principle applies to a samesex surviving spouse who seeks the additional 8x8 allowance based on deaths occurring on or before June 26, 2025. Effective Dates 13. Effective dates for VA benefits are governed by 38 U.S.C. 5110. Benefits generally are paid from the date of the claim. However, pursuant to 38 U.S.C. 5110(g), the effective date of an award based upon a liberalizing ‘‘administrative issue’’ may be up to one year prior to the date of the claim, but in no event prior to the effective date of the administrative issue. With respect to the marriage duration requirements of 38 U.S.C. 1541(f)(2), 1304(2), 1318(c)(1), and 1311(a)(2) for same-sex surviving spouses who were married to the Veteran and fulfill the relationship verification standards for establishing that they were effectively in a marital relationship, this Instruction may be characterized as a liberalizing administrative issue, such that associated effective dates may be governed by 38 U.S.C. 5110(g). 14. Therefore, the effective date to grant Survivors Pension, DIC, or the 8x8 allowance for a same-sex surviving spouse who married the Veteran and met the verification requirements outlined within this Instruction should be assigned as follows: a. If the claim was pending and nonfinal on October 11, 2022, VA will apply 38 U.S.C. 5110(g) and 38 CFR 3.114 to assign an effective date, fixed in accordance with the facts found, as early as October 11, 2022. b. If the claim was received after October 11, 2022, VA will apply 38 U.S.C. 5110(g) and 38 CFR 3.114 to assign an effective date, fixed in accordance with the facts found, as early as October 11, 2022, if the claimant files a claim within one year of the date of this Instruction. However, the effective date may not be retroactive for more than one year from the date of receipt of the claim. To be entitled to benefits for up to one year prior to the date of the claim under 38 CFR 3.114, the claimant must have met all eligibility criteria on the date of the liberalizing change in law or liberalizing issue. For these purposes, the date of the liberalizing change in law is October 11, 2022, and a claimant may be considered to have met the basic entitlement to E:\FR\FM\17NOR1.SGM 17NOR1 68908 Federal Register / Vol. 87, No. 221 / Thursday, November 17, 2022 / Rules and Regulations Survivors Pension or DIC or the additional 8x8 allowance eligibility criteria on that date if they fulfill the relationship verification standards for establishing that they were effectively in a marital relationship. c. If a claim was previously and finally decided prior to October 11, 2022, and the claimant was either denied benefits or a DIC benefit was awarded without the additional 8x8 allowance which would have been granted under the procedures identified within this Instruction, then the surviving spouse is required to file a new claim in a timely manner to satisfy the effective date requirements under 38 CFR 3.114, as noted above. In such cases, apply the effective date guidelines identified in paragraph b. above. 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. [FR Doc. 2022–24865 Filed 11–16–22; 8:45 am] POSTAL SERVICE 39 CFR Parts 3 and 6 39 CFR Part 6 Meetings (Article VI). For the reasons stated in the preamble, the Postal Service amends 39 CFR chapter I as set forth below: PART 3—BOARD OF GOVERNORS (ARTICLE III) 1. The authority citation for part 3 is revised to read as follows: ■ 2. Amend § 3.4 by: a. Revising paragraph (i) to read as follows: (i) Appointment and removal (in conjunction with Commissioners of the Postal Regulatory Commission) of the Inspector General under 39 U.S.C. 202(e). ■ b. Adding paragraphs (o) and (p) to read as follows: (o) Consideration and potential adjustment of the funding requested in the Postal Regulatory Commission’s budget for the succeeding fiscal year as required by 39 U.S.C. 504(d). (p) Approval of any program established under 39 U.S.C. 3703 to enter into agreements with agencies of state, local or tribal governments to provide property or non-postal services to the public on behalf of such agencies for non-commercial purposes. ■ This document includes several amendments to the Bylaws of the Board of Governors. Additions have been made to conform the Bylaws to existing law. Technical edits have also been made to clarify the language of the Bylaws. Amendments include the addition of decisions to be made by the Board of Governors and changes to the voting and quorum requirements for actions to be taken by the Board of Governors. SUMMARY: lotter on DSK11XQN23PROD with RULES1 Board of Governors (Article III). ■ Postal ServiceTM. ACTION: Final rule. AGENCY: Effective date: November 17, 2022. FOR FURTHER INFORMATION CONTACT: Michael J. Elston, Secretary of the Board of Governors, michael.j.elston@ usps.gov, 202–268–7432. 16:17 Nov 16, 2022 39 CFR Part 3 § 3.4 Matters reserved for decision by the Governors. Bylaws of the Board of Governors of the United States Postal Service VerDate Sep<11>2014 List of Subjects Authority: 39 U.S.C. 202, 203, 205, 401 (2), (10), 402, 404(b), 414, 416, 504, 1003, 2005, 2011, 2802–2804, 3013, 3622, 3632, 3642, 3652, 3654, 3691, 3703; 5 U.S.C. 552b(g), (j); 5 U.S.C. App.; Pub. L. 107–67, 115 Stat. 514 (2001). BILLING CODE 8320–01–P DATES: On October 4, 2022, the Board of Governors approved amendments to its Bylaws to address a variety of issues. Additions have been made to conform the Bylaws to existing law. Technical edits have been made to clarify the language of the Bylaws. The amendments include the addition of decisions that are reserved for the Board of Governors including consideration of and potential adjustment of funding requested in the Postal Regulatory Commission’s budget for succeeding fiscal years as well as approval of programs established under 39 U.S.C. 3703. Amendments also include edits to clarify and expand upon the quorum and voting requirements for the Board of Governors. SUPPLEMENTARY INFORMATION: Jkt 259001 PO 00000 Frm 00022 Fmt 4700 Sfmt 9990 PART 6—MEETINGS (ARTICLE VI) 1. The authority citation for part 6 is revised to read as follows: ■ Authority: 39 U.S.C. 202, 205, 401(2), (10), 504, 1003, 3622, 3632, 3703; 5 U.S.C. 552b(e), (g). § 6.6. Quorum and voting. 2. Amend § 6.6 by: a. Revising the introductory text to read as follows: Except for matters considered through the notation voting process described in § 6.7, the Board acts by resolution upon a vote of those members who attend a meeting in accordance with § 6.4. No proxies are allowed in any vote of the members of the Board. As provided by 39 U.S.C. 205(c), any six (6) members constitute a quorum for the transaction of business by the Board, and a resolution requires a favorable vote of a majority of those members who are present, except as follows: ■ b. Removing the semicolons at the end of paragraphs (a), (b), and (c) and adding a period in their respective places. ■ c. Removing ‘‘and;’’ at the end of paragraph (d) and adding a period in its place. ■ d. Revising paragraph (g) to read as follows: (g) In the appointment of the Inspector General, 39 U.S.C. 202(e) requires a favorable vote of a majority of the Governors then in office and of a majority of the Commissioners of the Postal Regulatory Commission then in office. ■ e. Adding paragraphs (h), (i), and (j) to read as follows: (h) In removing the Inspector General for cause, 39 U.S.C. 202(e) requires the written concurrence of at least 7 Governors and 3 Commissioners of the Postal Regulatory Commission. (i) In adjusting the funding requested in the Postal Regulatory Commission’s budget for the succeeding fiscal year, 39 U.S.C. 504(d) requires a unanimous written decision of the Governors then holding office, issued no later than 30 days after receiving the budget. (j) In approving a program established under 39 U.S.C. 3703 to enter into agreements with agencies of state, local or tribal governments to provide property or non-postal services to the public on such agencies’ behalf, 39 U.S.C. 3703(c) requires a recorded and publicly available vote of a majority of the Governors then holding office. ■ ■ Michael J. Elston, Secretary of the Board of Governors. [FR Doc. 2022–24285 Filed 11–16–22; 8:45 am] BILLING CODE 7710–12–P E:\FR\FM\17NOR1.SGM 17NOR1

Agencies

[Federal Register Volume 87, Number 221 (Thursday, November 17, 2022)]
[Rules and Regulations]
[Pages 68904-68908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24865]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3


Instruction of the Secretary and General Policy Statement on the 
Administration of Benefits for Particular Same-Sex Surviving Spouses

AGENCY: Department of Veterans Affairs.

ACTION: General policy statement.

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SUMMARY: The Department of Veterans Affairs (VA) announces that the 
Secretary of Veterans Affairs issued Instruction 01-22 on October 11, 
2022, which addresses the legal impediment that exists for certain same 
sex-surviving spouses to qualify for Survivors Pension or Dependency 
and Indemnity Compensation (DIC) benefits due to not meeting the 
duration of marriage requirements for those benefits because they were 
prevented from marrying at an earlier date by reason of laws that have 
been found to be unconstitutional. Additionally, VA announces Pension 
and Fiduciary Service's general policy statement on the administration 
of Veterans Benefits Administration (VBA) benefits for particular same-
sex surviving spouses.

DATES: The Pension and Fiduciary Service's general policy statement is 
effective November 17, 2022.

FOR FURTHER INFORMATION CONTACT: Kevin Baresich, 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:

Instruction of the Secretary 01-22

    Notice is given that the Secretary of Veterans Affairs issued 
Instruction of the Secretary 01-22--Instructions for Determining 
Whether Same-Sex Surviving Spouses Satisfy Duration of Marriage 
Requirements, on October 11, 2022. The text of Instruction 01-22 
appears at the end of this Federal Register document.

Background

    On June 26, 2015, the Supreme Court held in Obergefell v. Hodges 
that the Fourteenth Amendment of the U.S. Constitution requires a state 
to license a marriage between two people of the same sex and to 
recognize a marriage between two people of the same sex when their 
marriage was lawfully licensed and performed out-of-state. Accordingly, 
on October 16, 2015, VBA issued VBA Letter 20-15-16 which recognized 
that same-sex marriages will be accepted in benefit determinations 
without regard to a Veteran's state of residence. This guidance remains 
in effect.
    VBA administers benefits and programs for the surviving spouse of a 
Veteran which incorporate evaluations to determine the legality and 
duration of a marriage. Determining the duration of a marriage is 
required to establish entitlement to Survivors Pension, DIC, or the 
higher rate of DIC benefits under 38 U.S.C. 1311(a)(2) (heretofore 
referred to as the 8x8 allowance). The rules in 38 U.S.C. 1541(f)(2), 
1304(2), and 1318(c)(1) are the foundational statutory sources 
providing 1-year duration of marriage requirements for a surviving 
spouse to qualify for Survivors Pension and DIC. The requirement for 
the 8x8 allowance under 38 U.S.C. 1311(a)(2) further stipulates that a 
surviving spouse must have been married to a Veteran for at least a 
continuous 8-year period immediately preceding the Veteran's death 
during which a Veteran was rated totally disabled for a service-
connected disability. This increase for DIC benefits originated from 
section 102 of Public Law 102-568 passed on October 29, 1992, and the 
governing statute has maintained the same 8-year duration requirement 
since that time.
    As a result, under statutory requirements currently in effect, a 
same-sex surviving spouse who was only able to marry after the Supreme 
Court's decision in Obergefell would be unable to meet the 1-year 
marriage duration requirement until June 26, 2016, for Survivors 
Pension and DIC benefits, and would similarly be unable to satisfy the 
8-year marriage duration requirement for the 8x8 allowance until June 
26, 2023, at the earliest. This results in potential disparate 
treatment for same-sex surviving spouses who may have otherwise 
qualified for Survivors Pension, DIC, or the additional 8x8 allowance 
if they were not prevented from marrying at an earlier date by reason 
of laws that have been found to be unconstitutional.
    As provided within VBA Letter 20-15-16, VBA updated procedures on

[[Page 68905]]

processing benefit claims involving same-sex marriages following the 
June 26, 2015, Supreme Court decision in Obergefell v. Hodges. Since 
that time, entitlement to VBA benefits has been granted based on the 
legal authorization of same-sex marriages. However, in some cases, 
there is a legal impediment for a same-sex surviving spouse to qualify 
for Survivors Pension or DIC benefits due to not meeting the 
corresponding marriage duration requirements. A more pronounced 
impediment exists for the higher rate of DIC benefits for the 8x8 
allowance due to a marriage duration requirement that is currently 
wholly unattainable for those individuals who were unable to marry 
prior to Obergefell. In Instruction 01-22, issued on October 11, 2022, 
the Secretary instructed the Department to interpret the laws governing 
duration of marriage requirements in a manner that avoids unfairness to 
certain same-sex claimants by not giving effect to State laws that have 
been determined to be unconstitutional. The Instruction explained that 
while 38 U.S.C. 103 directs VA to look to State law, the Secretary 
presumes that Congress did not intend VA to apply those laws that have 
been determined to be unconstitutional to a survivor's detriment. 
Therefore, based on the Instruction, VBA is establishing this general 
policy statement, which provides instructions and procedures for 
processing Survivors Pension, DIC, or the 8x8 allowance determinations 
for particular same-sex surviving spouses.

Instructions for Determining Whether Same-Sex Surviving Spouses Satisfy 
Duration of Marriage Requirements

    Under 38 U.S.C. 5124(a), VBA may accept the written statement of a 
claimant's marriage to another individual as proof of the existence of 
the relationship. This statute is implemented under 38 CFR 3.204(a). To 
establish marriage under Sec.  3.204(a), VBA requires only a statement 
by the claimant that includes the date and place of marriage and the 
name and social security number of the person the claimant has 
identified as their spouse.
    The only instances when VBA will not accept a claimant's statement 
that they are married as being sufficient evidence to establish the 
claimant's marriage is when the claimant's statement on its face raises 
a question of validity, the claimant's statement conflicts with other 
evidence in the record, or there is a reasonable indication of fraud or 
misrepresentation. In these instances, VBA requires more information, 
per 38 CFR 3.204(a)(2).
    As previously stated, the Supreme Court's decision in Obergefell, 
which allowed VBA to provide spousal benefits to same-sex couples, has 
impacted survivor benefit claims. Therefore, for survivors claims, 
current VBA policy allows the acceptance of a written statement 
asserting the marital relationship but requires a determination on 
whether the same-sex marriage satisfies the requirements of 38 CFR 
3.50(b)(1) and (2) and 3.54. Proof of marriage requirements can also be 
satisfied by including the types of evidence outlined in 38 CFR 
3.205(a). Thus, in keeping with these regulatory provisions, VBA will 
first determine eligibility for benefits by determining the existence 
of a marriage pursuant to 38 CFR 3.204, and then, as described in more 
detail below, by calculating the duration of a same-sex marriage in a 
liberal manner, including the application of 38 CFR 3.205(a)(6) and 
(7).

Qualifying for Survivors Pension, DIC, or the 8x8 Allowance

    The acceptance of a valid marriage for a same-sex surviving spouse 
is currently not an obstacle to establishing basic entitlement for 
benefits. In accordance with the instructions provided in Instruction 
01-22, this general policy statement addresses the marriage duration 
legal impediment for a same-sex surviving spouse seeking Survivors 
Pension, DIC, or the 8x8 allowance which exists due to now 
unconstitutional laws within U.S. states and territories that prevented 
an earlier marriage. In particular, a same-sex surviving spouse may be 
unable to meet the duration requirement of being married to a Veteran 
for 1 year or more prior to the Veteran's death under 38 CFR 3.54 to 
qualify for Survivors Pension or DIC benefits; or may be unable to 
fulfill 38 U.S.C. 1311(a)(2) for the 8x8 allowance due to the inability 
of establishing a marriage for a consecutive 8-year time period. U.S. 
states and territories maintained varying same-sex marriage provisions 
prior to Obergefell. In seeking an approach that prevents disparate 
impact and enables a consistent and equitable application, VBA will 
utilize the date for the precedential Obergefell decision, June 26, 
2015, as the general delimiting date for policy determinations for 
particular same-sex marriage duration situations. VBA also acknowledges 
that it may have been impracticable for same-sex couples to have 
entered a marriage immediately after Obergefell was decided. As such, 
VBA will apply these policy considerations in the case of any same-sex 
surviving spouse who married a Veteran within two years of Obergefell, 
i.e., by June 26, 2017.
    The Secretary signed Instruction 01-22 to address the concerns 
noted above, while ensuring maximum consistency with the statutory 
requirement regarding duration of marriage, by requiring VBA to 
consider a marriage duration requirement to be satisfied when there is 
satisfactory evidence that a same-sex surviving spouse was effectively 
in a marital relationship for the specified period, supporting a 
conclusion that they would have been legally married for that period 
but for the unconstitutional laws of U.S. states or territories.
    In applying the standard set by the Instruction, VBA's general 
policy statement will follow the same evidentiary rules applicable in 
establishing any marital relationship. A same-sex surviving spouse will 
be required to provide verification that they were legally married to 
the Veteran at the time of the Veteran's death; that they held 
themselves out to the public as being in a committed relationship akin 
to that of marriage; and that they cohabitated, as evidenced through 
statements of persons in the community who knew the parties as akin to 
spouses and documents which show that the parties represented 
themselves as being in a committed relationship akin to that of 
marriage (see evidence requirements in 38 CFR 3.205(a)), for a minimum 
of 1 year prior to the Veteran's death for Survivors Pension and DIC 
entitlement.
    The Secretary's instructions will similarly be applied in the 
general policy statement by awarding the 8x8 allowance if the surviving 
spouse is able to provide the same verification for a period of 8 
consecutive years prior to the Veteran's death during which time the 
Veteran was rated totally disabled for a service-connected disability. 
The Instruction outlines that verification of the status of the 
relationship to establish entitlement to Survivors Pension, DIC, or the 
8x8 allowance will utilize pertinent existing procedural requirements 
for establishing the validity of a marriage relationship. Under those 
procedures, VA requires the claimant to provide the following:
     VA Form 21-4170,
     Two copies of VA Form 21P-4171 to be completed by two 
persons who know, as the result of personal observation, the 
relationship that existed between the parties, and
     Document(s) which show that the parties represented 
themselves as in a relationship akin to that of marriage.
    The verification requirements decreed by the Secretary in 
Instruction 01-22, which serves as the basis for this general

[[Page 68906]]

policy statement, afford a relaxed application of the standard within 
38 U.S.C. 1541(f)(1), 1304(2), and 1318(c)(1), as well as 38 CFR 3.54 
used to grant Survivors Pension and DIC will be applicable for same-sex 
marriages which occurred up through June 26, 2017. This same principle 
will be applied to 38 U.S.C. 1311(a)(2) to grant the 8x8 allowance, and 
thus the liberalized standard with respect to claims under that 
provision based on deaths occurring on or before June 26, 2025, will be 
applied.
    In some cases, such as those involving domestic partnerships or 
civil unions, VBA cannot recognize a marriage in a survivor's claim 
under 38 U.S.C. 103(c), but the case may raise the question of whether 
the marriage may be considered a ``deemed valid'' marriage under 38 
U.S.C. 103(a). VBA will apply the same rules stated in the general 
policy statement for determining whether a marital relationship 
satisfies the duration requirements for Survivors Pension, DIC, or the 
8x8 allowance for a same-sex domestic partnership or civil union if it 
was considered a ``deemed valid'' marriage under 38 U.S.C. 103(a).
    In a similar treatment, if the surviving spouse indicates that 
their same-sex marriage is a common-law marriage, claims processors 
must determine whether the same-sex relationship qualifies as a common-
law marriage. See evidence requirements in 38 CFR 3.205(a). Claims 
processors may seek guidance from district counsel as needed. VBA will 
apply the same rules stated in the general policy statement for 
determining whether a marital relationship satisfies the duration 
requirements for Survivors Pension, DIC, or the 8x8 allowance for a 
same-sex common-law marriage that meets the verification requirements 
identified within 38 CFR 3.205(a).

Text of Instruction of the Secretary 01-22

    Subject: Instructions for Determining Whether Same-Sex Surviving 
Spouses Satisfy Duration of Marriage Requirements

Purpose

    1. In some cases, there is a legal impediment for a same-sex 
surviving spouse to qualify for Survivors Pension or Dependency and 
Indemnity Compensation (DIC) benefits due to not meeting the 
corresponding marriage duration requirements. A more pronounced 
impediment exists for the higher rate of DIC benefits under 38 U.S.C. 
1311(a)(2) (hereinafter referred to as the 8x8 allowance) due to a 
marriage duration requirement that is wholly unattainable for some 
individuals who were unable to marry prior to the United States Supreme 
Court's decision in Obergefell v. Hodges. Recognizing that certain 
same-sex surviving spouses were prevented from marrying at an earlier 
date by reason of laws that have been found to be unconstitutional, I 
am instructing Department of Veterans Affairs (VA or the Department) 
employees to adjudicate claims in a manner that will avoid unfairness 
to those individuals by not giving effect to those unconstitutional 
laws. This Instruction provides directions and procedures for making 
Survivors Pension, DIC, or the 8x8 allowance determinations for 
particular same-sex surviving spouses.

Background

    2. On September 4, 2013, the United States Attorney General 
announced that the President had directed the Executive Branch to cease 
enforcement of 38 U.S.C. 101(3) and 101(31), which defined the terms 
``surviving spouse'' and ``spouse'' for purposes of Veterans benefits 
as referring only to a person of the opposite sex, to the extent they 
precluded provision of Veterans' benefits to same-sex married couples. 
Accordingly, VA ceased to enforce 38 U.S.C. 101(3) and 101(31) and the 
implementing regulation (38 CFR 3.50), to the extent that they 
precluded provision of Veterans' benefits to same-sex married couples. 
The Attorney General's announcement allowed VA to administer spousal 
and survivors' benefits to same-sex married couples, provided their 
marriages otherwise met the requirements of 38 U.S.C. 103(c).
    3. On June 26, 2015, the Supreme Court held in Obergefell v. Hodges 
that the Fourteenth Amendment of the U.S. Constitution requires a state 
to license a marriage between two people of the same sex and to 
recognize a marriage between two people of the same sex when their 
marriage was lawfully licensed and performed out-of-state. Accordingly, 
on October 16, 2015, the Veterans Benefits Administration (VBA) issued 
VBA Letter 20-15-16 which updated procedures on processing benefit 
claims involving same-sex marriages and recognized that same-sex 
marriages will be accepted in benefit determinations without regard to 
a Veteran's state of residence. This guidance remains in effect.
    4. VA administers benefits and programs for the surviving spouse of 
a Veteran which incorporate evaluations to determine the legality and 
duration of a marriage. VA must determine the duration of a marriage in 
order to establish entitlement to Survivors Pension, DIC, or the 8x8 
allowance. 38 U.S.C. 1541(f)(2), 1304(2), and 1318(c)(1) are the 
foundational statutory sources containing one-year duration of marriage 
requirements for a surviving spouse to qualify for Survivors Pension 
and DIC. The requirement for the 8x8 allowance under 38 U.S.C. 
1311(a)(2) further stipulates that a surviving spouse must have been 
married to a Veteran for at least a continuous eight-year period 
immediately preceding the Veteran's death during which a Veteran was 
rated totally disabled for a service-connected disability.
    5. As a result, under statutory requirements currently in effect, a 
same-sex surviving spouse who was only able to marry after the Supreme 
Court's decision in Obergefell would have been unable to meet the one-
year marriage duration requirement until June 26, 2016, for Survivors 
Pension and DIC benefits, and would similarly have been unable to 
satisfy the eight-year marriage duration requirement for the 8x8 
allowance until June 26, 2023, at the earliest. This results in 
potential disparate treatment for same-sex surviving spouses who may 
have otherwise qualified for Survivors Pension, DIC, or the additional 
8x8 allowance if they were not prevented from marrying at an earlier 
date by reason of laws that have been found to be unconstitutional.
    6. Under 38 U.S.C. 103(c), ``[i]n determining whether or not a 
person is or was the spouse of a veteran, the marriage shall be proven 
as valid for the purposes of all laws administered by the Secretary 
according to the law of the place where the parties resided at the time 
of the marriage or the law of the place where the parties resided when 
the right to benefits accrued.'' While the statute refers to two 
specific points in time for determining whether the parties attained 
married status, it is unclear how it should be applied in determining 
the duration of a marriage over a period of time, particularly when the 
laws of the relevant place (e.g., a State) have been found to have been 
unconstitutional for a portion of such period.
    7. The Supreme Court has stated that ``where an otherwise 
acceptable construction of a statute would raise serious constitutional 
problems, the Court will construe the statute to avoid such problems 
unless such construction is plainly contrary to the intent of 
Congress.'' Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & 
Constr. Trades Council, 485 U.S. 568, 575 (1988). VA will follow that 
approach in interpreting and applying section 103(c) to duration-of-
marriage determinations in cases

[[Page 68907]]

where unconstitutional State laws potentially could affect such 
determinations.
    8. After consulting with the Department of Justice, through this 
Instruction, I am instructing the Department not to give effect to 
unconstitutional laws that prevented same-sex couples from marrying 
when adjudicating duration of marriage issues for purposes of Survivors 
Pension and DIC benefits, including the 8x8 allowance. This Instruction 
addresses the legal impediment which a same-sex couple may face in 
fulfilling the marriage duration requirement under 38 U.S.C. 
1541(f)(2), 1304(2), 1318(c)(1), and 1311(a)(2) as well as 38 CFR 
3.10(c) and (f)(1) and 3.54. In doing so, the Department will interpret 
the statutes governing duration of marriage issues based on the 
inference that Congress did not intend VA to apply unconstitutional 
laws to Veterans' detriment. Thus, this Instruction will align policy 
and procedures applying to particular same-sex surviving spouses' 
situations for Survivors Pension, DIC, or the 8x8 allowance to better 
conform with the Supreme Court decision in Obergefell and to adjudicate 
claims in a manner that will avoid unfairness to those individuals.

Qualifying for Survivors Pension, DIC, or 8x8 Allowance

    9. The issue this Instruction addresses is the legal impediment 
which exists for a same-sex surviving spouse seeking Survivors Pension, 
DIC, or the 8x8 allowance while being unable to meet marriage duration 
requirements due to a legal impediment that existed under laws now 
recognized as unconstitutional within U.S. states and territories. In 
particular, a same-sex surviving spouse may be unable to meet the 
duration requirement of being married to a Veteran for one year or more 
prior to the Veteran's death under 38 CFR 3.54 to qualify for Survivors 
Pension or DIC benefits, or a same-sex surviving spouse may be unable 
to fulfill 38 U.S.C. 1311(a)(2) for the 8x8 allowance due to the 
inability to establish a marriage for a consecutive eight-year time 
period. Recognizing that U.S. states and territories maintained varying 
same-sex marriage provisions prior to Obergefell and seeking an 
approach that prevents disparate impact and enables a consistent and 
equitable application, I have decided to utilize the date of the 
precedential Obergefell decision, June 26, 2015, as the general date 
that same-sex couples were no longer prevented from marrying for 
purposes of this Instruction. VA also acknowledges that it may have 
been impracticable for same-sex couples to have entered a marriage 
immediately after Obergefell was decided. As such, I am instructing VA 
to similarly apply this Instruction in the case of any same-sex 
surviving spouse who married a Veteran up through two years after 
Obergefell, i.e., by June 26, 2017.
    10. To address the concerns noted above, while ensuring maximum 
consistency with the statutory requirements regarding duration of 
marriage, VA will consider a marriage duration requirement to be 
satisfied when there is satisfactory evidence that a same-sex surviving 
spouse was effectively in a marital relationship for the specified 
period, supporting a conclusion that they would have been legally 
married for that period but for the unconstitutional state laws. In 
applying this standard, VA generally will follow the same evidentiary 
rules applicable in establishing any marital relationship. A same-sex 
surviving spouse will be required to provide verification that they 
were legally married to the Veteran at the time of the Veteran's death; 
that they held themselves out to the public as being in a committed 
relationship akin to that of marriage; and that they cohabitated, as 
evidenced through statements of persons in the community who knew the 
parties as akin to spouses and documents which show that the parties 
represented themselves as being in a committed relationship akin to 
that of marriage (see evidence requirements in 38 CFR 3.205(a)), for a 
minimum of one year prior to the Veteran's death for Survivors Pension 
and DIC. This Instruction will similarly be applied for awarding the 
8x8 allowance if the surviving spouse is able to provide the same 
verification for a period of eight consecutive years prior to the 
Veteran's death during which time the Veteran was rated totally 
disabled for a service-connected disability.
    11. The verification requirements in this Instruction to afford a 
relaxed application of the standard within 38 U.S.C. 1541(f)(1), 
1304(2), and 1318(c)(1), as well as 38 CFR 3.54 used to grant Survivors 
Pension and DIC, will be applicable for same-sex marriages which 
occurred up through June 26, 2017. This same principle will be applied 
to 38 U.S.C. 1311(a)(2) for purposes of the 8x8 allowance, and thus the 
Instruction will be applied with respect to claims under that provision 
based on deaths occurring on or before June 26, 2025.

Applicability

    12. This Instruction applies to all claims that are pending and 
nonfinal on the date of this instruction, and any original, 
supplemental, or other claims filed on or after the date of this 
Instruction, in which a same-sex surviving spouse seeks Survivors 
Pension and DIC based upon a marriage occurring no later than June 26, 
2017. This same principle applies to a same-sex surviving spouse who 
seeks the additional 8x8 allowance based on deaths occurring on or 
before June 26, 2025.

Effective Dates

    13. Effective dates for VA benefits are governed by 38 U.S.C. 5110. 
Benefits generally are paid from the date of the claim. However, 
pursuant to 38 U.S.C. 5110(g), the effective date of an award based 
upon a liberalizing ``administrative issue'' may be up to one year 
prior to the date of the claim, but in no event prior to the effective 
date of the administrative issue. With respect to the marriage duration 
requirements of 38 U.S.C. 1541(f)(2), 1304(2), 1318(c)(1), and 
1311(a)(2) for same-sex surviving spouses who were married to the 
Veteran and fulfill the relationship verification standards for 
establishing that they were effectively in a marital relationship, this 
Instruction may be characterized as a liberalizing administrative 
issue, such that associated effective dates may be governed by 38 
U.S.C. 5110(g).
    14. Therefore, the effective date to grant Survivors Pension, DIC, 
or the 8x8 allowance for a same-sex surviving spouse who married the 
Veteran and met the verification requirements outlined within this 
Instruction should be assigned as follows:
    a. If the claim was pending and nonfinal on October 11, 2022, VA 
will apply 38 U.S.C. 5110(g) and 38 CFR 3.114 to assign an effective 
date, fixed in accordance with the facts found, as early as October 11, 
2022.
    b. If the claim was received after October 11, 2022, VA will apply 
38 U.S.C. 5110(g) and 38 CFR 3.114 to assign an effective date, fixed 
in accordance with the facts found, as early as October 11, 2022, if 
the claimant files a claim within one year of the date of this 
Instruction. However, the effective date may not be retroactive for 
more than one year from the date of receipt of the claim. To be 
entitled to benefits for up to one year prior to the date of the claim 
under 38 CFR 3.114, the claimant must have met all eligibility criteria 
on the date of the liberalizing change in law or liberalizing issue. 
For these purposes, the date of the liberalizing change in law is 
October 11, 2022, and a claimant may be considered to have met the 
basic entitlement to

[[Page 68908]]

Survivors Pension or DIC or the additional 8x8 allowance eligibility 
criteria on that date if they fulfill the relationship verification 
standards for establishing that they were effectively in a marital 
relationship.
    c. If a claim was previously and finally decided prior to October 
11, 2022, and the claimant was either denied benefits or a DIC benefit 
was awarded without the additional 8x8 allowance which would have been 
granted under the procedures identified within this Instruction, then 
the surviving spouse is required to file a new claim in a timely manner 
to satisfy the effective date requirements under 38 CFR 3.114, as noted 
above. In such cases, apply the effective date guidelines identified in 
paragraph b. above.

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.
[FR Doc. 2022-24865 Filed 11-16-22; 8:45 am]
BILLING CODE 8320-01-P
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