Clarification of VA's Processing of Survivors Benefits Claims, 17354-17358 [2024-04895]
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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules
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[FR Doc. 2024–05089 Filed 3–8–24; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Parts 3, 8 and 20
RIN 2900–AR32
Clarification of VA’s Processing of
Survivors Benefits Claims
The Department of Veterans
Affairs (VA) proposes to amend its
adjudication regulations concerning
survivors benefits claims. With respect
to claims processing, VA proposes to
clarify that, if VA determines that a
surviving spouse or child is eligible for
dependency and indemnity
compensation (DIC), VA would
concurrently deny the co-existing claim
for survivors pension, except where
paying survivors pension would be
more beneficial to the claimant, which
would only be the case if the claimant
is the veteran’s surviving spouse and the
claimant’s application indicates that the
claimant does not have any dependents,
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Comments must be received on
or before May 10, 2024.
ADDRESSES: Comments must be
submitted through www.regulations.gov.
Except as provided below, comments
received before the close of the
comment period will be available at
www.regulations.gov for public viewing,
inspection, or copying, including any
personally identifiable or confidential
business information that is included in
a comment. We post the comments
received before the close of the
comment period on the following
website as soon as possible after they
have been received: https://
www.regulations.gov. VA will not post
on Regulations.gov public comments
that make threats to individuals or
institutions or suggest that the
commenter will take actions to harm the
individual. VA encourages individuals
not to submit duplicative comments;
however, we will post comments from
multiple unique commenters even if the
content is identical or nearly identical
to other comments. Any public
comment received after the comment
period’s closing date is considered late
and will not be considered in the final
rulemaking. In accordance with the
Providing Accountability Through
Transparency Act of 2023, a 100 word
Plain-Language Summary of this
proposed rule is available at
Regulations.gov, under RIN–2900–
AR32.
DATES:
Eric
Baltimore, Management and Program
Analyst, Pension and Fiduciary Service
(21PF), 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: A
surviving spouse or child of a Veteran
may apply for any of several survivors
benefits including DIC, survivors
pension, and/or accrued benefits. See 38
U.S.C. 5101(b)(1). VA is required to
address and make a decision on each
benefit, irrespective of claimant intent,
whenever a surviving spouse or child
submits a claim for DIC, survivors
pension, and/or accrued benefits on VA
Form 21P–534 or 21P–534EZ. This
proposed rule would only address VA’s
FOR FURTHER INFORMATION CONTACT:
Department of Veterans Affairs.
ACTION: Proposed rule.
AGENCY:
SUMMARY:
is currently in a nursing home, and has
applied for or is currently receiving
Medicaid. The intended effect of this
rulemaking is to streamline and improve
the timeliness of the adjudication of
claims processing for VA survivors
benefits while ensuring that claimants
receive the greatest benefit allowed by
law.
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processing of the survivors pension
claims of surviving spouses and
children whom VA has determined are
eligible for DIC. VA is not proposing to
change its processing of survivors
pension claims in cases in which the
claimant is ineligible for DIC. Nor is VA
proposing to change its processing of
accrued benefits claims.
DIC and survivors pension provide a
basic rate of payment with increases
where (1) the survivor is in need of
regular aid and attendance, (2) the
survivor is permanently housebound, or
(3) the surviving spouse has custody of
the veteran’s minor child(ren), and, in
each instance, the DIC rate exceeds the
maximum annual pension rate.
Compare 38 U.S.C. 1311 (providing the
DIC rates for surviving spouses) and
1313 (providing the DIC rates for
children), with 38 U.S.C. 1541
(providing the survivors pension rates
for surviving spouses) and 1542
(providing the survivors pension rates
for children). Because DIC and survivors
pension are not payable concurrently,
38 U.S.C. 1317(a), once VA finds the
survivor eligible for DIC, specific factual
findings with respect to survivors
pension will not result in VA paying
additional benefits to that survivor.
‘‘VA possesses a duty not only to
individual claimants, but to the effective
functioning of the veterans [benefits]
system as a whole.’’ Veterans Justice
Grp., LLC v. Sec’y of Veterans Affairs,
818 F.3d 1336, 1354 (Fed. Cir. 2016).
Recipients of VA’s survivors benefits—
especially survivors pension—are some
of VA’s most vulnerable beneficiaries.
Most beneficiaries who receive
survivors pension are elderly widows or
widowers who just lost their spouse’s
household income and have income
below the maximum annual pension
rate of $11,102 (surviving spouse with
no dependents effective December 1,
2023), established by Congress for
entitlement to VA survivors pension.
VA believes this population is best
served by VA focusing its adjudication
resources in the areas more likely to
result in benefits flowing to survivors.
To this end, VA proposes to amend 38
CFR 3.152 to specifically state the
general rule that a grant of DIC would
result in the automatic denial of
survivors pension, to ensure that a
surviving spouse or child would receive
the greater benefit more quickly.
VA acknowledges its statutory
obligation to ‘‘decide all questions of
law and fact necessary to a decision by
[VA] under a law that affects the
provision of benefits by [VA] to veterans
or the dependents or survivors of
veterans.’’ 38 U.S.C. 511(a). A
‘‘decision’’ either grants or denies the
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benefit sought. Maggitt v. West, 202 F.3d
1370, 1376 (Fed. Cir. 2000). With
respect to claims for DIC and survivors
pension, Congress has provided a
general rule of decision by statute,
stating that no person eligible for DIC
shall be eligible for survivors pension.
38 U.S.C. 1316(b), 1317(a). Therefore,
once VA finds eligibility for DIC, there
are no additional findings of law or fact
necessary to decide the claim for
survivors pension. The survivor’s
eligibility for DIC itself precludes
eligibility for survivors pension. VA
proposes to amend §§ 3.5(c) and
3.152(b)(1) to clarify this point.
VA also recognizes that Congress has
enacted an exception to the rule
provided in 38 U.S.C. 1317(a),
permitting a surviving spouse who is
eligible for DIC to nonetheless receive
survivors pension in certain
circumstances. 38 U.S.C. 1317(b). VA
proposes to amend §§ 3.5 and 3.152 to
account for this exception as well. For
context, 38 U.S.C. 1317(a) states, in
relevant part, ‘‘[e]xcept as provided in
subsection (b), no person eligible for
[DIC] by reason of any death occurring
after December 31, 1956, shall be
eligible by reason of such death for any
payments under . . . provisions of law
administered by the Secretary providing
for the payment of . . . death pension.’’
Because survivors pension is only
payable to surviving spouses and
children of wartime veterans, this
restriction on payment of survivors
pension to someone eligible for DIC
only affects those individuals. The
exception states that ‘‘[a] surviving
spouse who is eligible for [DIC] may
elect to receive death pension instead of
such compensation.’’ 38 U.S.C. 1317(b).
When considered in isolation,
subsection (b) appears to create an
unfettered right of election for surviving
spouses, which would mean that the
general rule only applies to children.
Yet, of the 259,462 surviving spouses
and children receiving DIC at the time
the exception was enacted, less than
nine percent were children. More than
91 percent were surviving spouses.
Because ‘‘it is hard to even imagine a
rational statutory exception that is
intentionally designed to swallow the
rule,’’ AFGE v. Trump, 318 F. Supp. 3d
370, 434 (D.D.C. 2018), vacated on other
grounds by 929 F.3d 748, 761 (D.C. Cir.
2019)), ‘‘[i]n construing provisions . . .
in which a general statement of policy
is qualified by an exception, [courts]
usually read the exception narrowly in
order to preserve the primary operation
of the provision.’’ Comm’r v. Clark, 489
U.S. 726, 739 (1989) (citing Phillips, Inc.
v. Walling, 324 U.S. 490, 493 (1945)).
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Therefore, we turn to legislative history
for further insight into congressional
intent. See Reid v. Department of
Commerce, 793 F.2d 277, 282 (Fed. Cir.
1986) (‘‘resort[ing] to legislative history
to ascertain the intent of Congress’’
when ‘‘a literal reading of the statute’’
‘‘would lead to a result at variance with
the policy of the legislation as a
whole’’).
The legislative history discusses a
surviving spouse’s election of survivors
pension solely in terms of cost savings
for the Federal Government. See Public
Law 103–446, sec. 111 (captioned ‘‘CostSavings Provisions’’). As stated
previously, the applicable DIC rate
always exceeds the maximum annual
pension rate. Therefore, looking only at
the monthly benefit payments, the
default rule that a person eligible for the
greater benefit is ineligible for the lesser
benefit would increase costs. From that
perspective, it would appear that
permitting any surviving spouse to elect
the lesser benefit would yield the most
cost savings. However, VA’s costs are
not limited to benefit payments. VA also
incurs adjudication-related costs. The
default rule in section 1317(a) reduces
adjudication costs because VA only has
to adjudicate entitlement to the lesser
benefit if the claimant is ineligible for
the greater benefit. Cost savings can
only be realized through an election
provision if enough claimants actually
elect the lesser benefit that the aggregate
reduction in benefit payments actually
exceeds the additional administrative
costs associated with the adjudication of
entitlement to the lesser benefit.
Yet, the Court of Appeals for Veterans
Claims has recognized the high
improbability that a claimant would
intentionally seek less than the
maximum benefit. AB v. Brown, 6 Vet.
App. 35, 38 (1993) (‘‘the claimant will
generally be presumed to be seeking the
maximum benefit allowed by law and
regulation’’). Further, it is very unlikely
that Congress established section
1317(b) for the purpose of allowing
claimants to elect the lesser benefits
where doing so is contrary to their own
interests.
Nonetheless, the legislative history
does identify one situation in which the
payment of survivors pension would
result in more funds actually ending up
in the hands of the claimant, while at
the same time yielding cost savings to
the Federal government: if a surviving
spouse who has no dependents is
receiving nursing home care paid for by
a joint Federal and state program known
as Medicaid. If an individual does not
have dependents, Medicaid will not pay
for the individual’s nursing home care
unless all of the individual’s income is
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first used toward the nursing home
costs. As a result, if VA pension
constitutes countable income for
Medicaid purposes, the VA pension
program is essentially paying for
nursing home care that would otherwise
be paid for by Medicaid. Recognizing
this, in 1990, Congress enacted a
provision providing pension payments
at $90.00 per month for Veterans who
have no dependents and are receiving
nursing home care at Medicaid expense.
H.R. Rep. No. 101–964, at 982–83
(1990). Congress also made clear that
the $90.00 per month was not countable
income for Medicaid purposes, which
provided an incentive for Veterans to
elect the pension benefit.
In 1992, Congress extended the same
policy to surviving spouses. Veterans
Benefits Act of 1992, Public Law 102–
568, sec. 601(a). However, the statutory
bar in 38 U.S.C. 1317(a) against
eligibility for survivors pension when
an individual was eligible for DIC
limited the cost savings to the Federal
Government, because it required VA to
pay DIC rather than the protected
pension benefit. To address this, in
1994, Congress enacted 38 U.S.C.
1317(b) as a cost-saving measure,
enabling surviving spouses to elect
survivors pension in lieu of DIC. H.R.
Rep. No. 103–669, at 11. A surviving
spouse who has no dependents and
requires nursing home care and who
receives DIC would have to use all the
DIC for nursing home care costs before
Medicaid coverage would apply. A
surviving spouse requiring nursing
home care may, instead, choose to elect
survivors pension to receive $90.00 per
month, which is not countable income
for Medicaid purposes, in addition to
receiving Medicaid coverage. As a
result, the surviving spouse’s nursing
home care costs would be covered more
by Medicaid and less by VA and the
Federal Government.
VA acknowledges that the text of
section 1317(b) is not expressly limited
to the circumstance involving a
surviving spouse who has no
dependents and requires nursing home
care paid by Medicaid or with an
application pending with Medicaid for
such care. However, the only fact
pattern addressed in legislative history
materials produced during the
conference report stage was that
involving surviving spouses who do not
have any dependents and who are
receiving nursing home care paid by
Medicaid, see H.R. Rep. No. 103–669 at
11; see 140 Cong. Rec. 11355 (daily ed.
Oct. 7, 1994) (joint explanatory
statement) (‘‘This would permit
surviving spouses who are in Medicaidcovered nursing homes and who receive
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DIC to elect to receive death pension, in
order to be able to retain $90 of their
monthly benefits’’). ‘‘The conference
report stage is closest to final passage
and is generally thus the best indicator
of legislative meaning apart from the
statute itself.’’ Disabled in Action of
Metro. New York v. Hammons, 202 F.3d
110, 125 (2d Cir. 2000).
Moreover, VA is unaware of a
comparable fact pattern in which a
lesser VA benefit may result in a greater
aggregate recovery for a claimant. As
noted above, Congress established in
section 1317(a) a general rule that
entitlement to DIC precludes
entitlement to survivors pension, and
the exception in section 1317(b) was
enacted to address a narrow situation, in
which the exception serves both to
maximize VA payments to the claimant
and to limit Federal expenditures that
would otherwise be diverted to third
parties. VA believes that applying the
exception only to those cases involving
a surviving spouse who has no
dependents and requires nursing home
care paid by Medicaid or with an
application pending Medicare for such
care best balances the goals of section
1317(a) and (b), and best serves VA
claimants by avoiding the unnecessary
case-specific and systemic delays and
the Federal expenditures that would
result from developing and deciding
pension claims that would not
maximize VA benefits to claimants.
Therefore, VA interprets section
1317(b) as applying only in the
circumstance involving a surviving
spouse who has no dependents and
requires nursing home care paid by
Medicaid or with an application
pending with Medicaid for such care.
Because survivors pension would be the
better benefit for the surviving spouse
when a surviving spouse with no
dependents is receiving nursing home
care paid by Medicaid, VA would
automatically grant survivors pension,
provide a formal rating decision
denying DIC, and inform the surviving
spouse why VA is granting survivors
pension. If VA grants a surviving spouse
survivors pension in lieu of DIC as the
more advantageous benefit, the
surviving spouse is not barred from
reapplying for and receiving DIC in the
event the surviving spouse becomes
ineligible for survivors pension at the
rate provided for in 38 U.S.C. 5503(d).
In that circumstance, if the surviving
spouse’s application were received
within one year of the date on which
Medicaid-covered nursing home care
ended, VA would deem the application
to have been received on the date that
Medicaid covered nursing home care
ended and DIC benefits would be
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effective as of the calendar month after
Medicaid-covered nursing home care
ended. Otherwise, DIC benefits would
not be effective earlier than the date VA
receives the claim. Similarly, if a
surviving spouse who, but for receipt of
DIC, would be eligible for survivors
pension begins receiving Medicaidcovered nursing home care, the
surviving spouse would not be barred
from reapplying for and receiving
survivors pension at the rate provided
for in section 5503(d). In that
circumstance, the effective date of
survivors pension would be based on
the date of claim for survivors pension
and the date DIC payments were
discontinued. VA proposes to amend
§§ 3.402 and 3.502(f) to address this
change.
Furthermore, it is not VA’s intent to
eliminate a survivor’s opportunity to
claim more than one benefit on a single
form—rather it is to reduce the
administrative burden for both VA and
the claimant and to expedite the
delivery of benefits to survivors. If VA
determines that the claimant is the
veteran’s surviving spouse or child, but
that the veteran’s death does not entitle
the veteran’s survivor to DIC, see 38
U.S.C. 1310, 1318, VA will decide the
additional questions of fact or law
necessary to grant or deny survivors
pension. Similarly, where VA
determines that the claimant is the
veteran’s surviving spouse and the
veteran’s death entitles the veteran’s
survivors to DIC, VA will determine
whether, but for DIC entitlement, the
surviving spouse would be entitled to
survivors pension at the rate provided
for in 38 U.S.C. 5503(d). In addition, in
all cases, VA will provide notice of its
decision with respect to DIC and
survivors pension in accordance with 38
U.S.C. 5104, including any favorable
findings that were necessary to those
decisions and provide such decision
notification in writing to the claimant
and his or her representative, if
applicable.
Therefore, VA proposes to amend
§§ 3.5(c), 3.152(b)(1) and 3.702(d)(2) to
clarify VA’s authority to pay the higher
or better benefit between DIC and
survivors pension. The intended effect
of this amendment is to streamline and
improve the timeliness of the
adjudication of claims processing for
VA survivor benefits and deliver
decisions on claimed benefits and
services more timely to beneficiaries in
need and during a difficult time.
VA also proposes to replace the term
‘‘death pension’’ with the term
‘‘survivors pension’’ each place it
appears in VA’s implementing
regulations. This will ensure that the
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language of VA’s implementing
regulations aligns with current usage.
Also, VA proposes to replace the words
‘‘or compensation’’ with ‘‘or death
compensation’’ each place they appear
in VA’s implementing regulations.
Executive Orders 12866, 13563 and
14094
Executive Order 12866 (Regulatory
Planning and Review) directs 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. Executive Order
14094 (Executive order on Modernizing
Regulatory Review) supplements and
reaffirms the principles, structures, and
definitions governing contemporary
regulatory review established in
Executive Order 12866 and Executive
Order 13563. The Office of Information
and Regulatory Affairs has determined
that this rulemaking is not a significant
regulatory action under Executive Order
12866, as amended by Executive Order
14094. The Regulatory Impact Analysis
associated with this rulemaking can be
found as a supporting document at
www.regulations.gov.
Paperwork Reduction Act
Although this proposed 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 § 3.152 is currently
approved by the Office of Management
and Budget and has been assigned OMB
control number 2900–0004.
VA’s proposed changes would not
result in a reduction of an information
collection burden. A surviving spouse
or child applies for both DIC and
survivors pension using a single form.
While some of the information solicited
by the form is pertinent to either benefit
(e.g., the claimant’s relationship to the
veteran and information regarding the
veteran’s service), other information is
specific to one benefit (e.g., income and
asset information with respect to
survivor’s pension). Pursuant to this
rulemaking, if VA grants DIC to a
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surviving spouse who is not eligible for
the exception under 38 U.S.C. 1317(b),
or to a child, VA would be able to
adjudicate the application for survivors
pension without making specific factual
findings regarding income and net
worth because the claimant’s
entitlement to DIC would itself be a bar
to entitlement to survivor’s pension.
Conversely, if VA denies DIC or if the
surviving spouse had potential
eligibility for the exception under 38
U.S.C. 1317(b), VA would have a legal
obligation to solicit income and net
worth information from the claimant.
Isenhart v. Derwinski, 3 Vet. App. 177,
179–80 (1992). Yet, whether that
information would be necessary to the
adjudication of the application would
only be known after VA makes a
determination regarding eligibility for
DIC. Considering VA’s duties to
individual claimants as well as the
functions of the benefits system as a
whole, VA believes that continuing to
collect information pertinent to
survivors pension entitlement at the
time a surviving spouse or child applies
for DIC would promote streamlined
claims processing and reduce the
likelihood that claimants would be
subject to multiple, separate requests for
information.
Regulatory Flexibility Act
38 CFR Part 8
Life insurance, Military personnel,
Veterans.
38 CFR Part 20
Administrative practice and
procedure, Claims, Veterans.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, signed and approved
this document on March 1, 2024, 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.
Michael P. Shores,
Director, Office of Regulation Policy &
Management, Office of General Counsel,
Department of Veterans Affairs.
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*
*
*
*
(b)(1)(i) * * *
(ii)(A) Except as provided in
paragraph (b)(1)(ii)(B) of this section, an
award of dependency and indemnity
compensation to a surviving spouse or
child will result in the denial of
survivors pension.
(B) With respect to a claim by a
surviving spouse, if the evidence
establishes that, but for the surviving
spouse’s eligibility for dependency and
indemnity compensation, the surviving
spouse would be eligible to receive
survivors pension at the rate provided
for in 38 U.S.C. 5503(d), survivors
pension will be paid instead of such
compensation.
(Authority: 38 U.S.C. 1317)
*
*
*
*
4. Amend § 3.402 by adding paragraph
(d) to read as follows:
■
Surviving spouse.
*
*
*
*
*
*
(d) Medicaid-covered nursing home
care. (1) If a surviving spouse spouse
described in § 3.152(b)(1)(ii)(B) stops
receiving Medicaid-covered nursing
home care, dependency and indemnity
compensation, if otherwise in order,
will be effective as of the date Medicaid
coverage ceased, if a claim for
dependency and indemnity
compensation is received within one
year of the date Medicaid coverage
ceased; otherwise, it will be effective as
of the date of receipt of claim or date
entitlement arose, whichever is later.
(2) If a surviving spouse who is
receiving dependency and indemnity
compensation and who, but for
eligibility for dependency and
indemnity compensation, would be
eligible for survivors pension, begins
receiving Medicaid-covered nursing
home care, survivors pension will be
effective as of the first day of the month
after dependency and indemnity
compensation was discontinued, if a
claim for survivors pension is received
within one year of the date dependency
and indemnity compensation was
discontinued; otherwise, it will be
effective as of the date of receipt of
claim or date entitlement arose,
whichever is later.
■ 5. Amend § 3.502 by revising the
paragraph heading of paragraph (f) to
read as follows:
■
■
§ 3.502
Subpart A—Pension, Compensation,
and Dependency and Indemnity
Compensation
1. The authority citation for part 3,
subpart A, continues to read as follows:
Authority: 38 U.S.C. 501(a), unless
otherwise noted.
2. Amend § 3.5 by revising paragraph
(c) to read as follows:
■
§ 3.5 Dependency and indemnity
compensation.
(Authority: 38 U.S.C. 1317)
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Claims for death benefits.
*
§ 3.402
List of Subjects
Administrative practice and
procedure, Claims, Disability benefits,
§ 3.152
PART 3—ADJUDICATION
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 proposed rule would
have no such effect on State, local, and
tribal governments, or on the private
sector.
38 CFR Part 3
b. Adding paragraph (b)(1)(ii).
The addition reads as follows:
*
*
*
*
*
(c) Exclusiveness of remedy. (1)
Except as provided in paragraph (c)(2)
of this section, no person eligible for
dependency and indemnity
compensation by reason of a death
occurring on or after January 1, 1957,
shall be eligible by reason of such death
for survivors pension or death
compensation under any other law
administered by the Department of
Veterans Affairs.
(2) A surviving spouse who, but for
the surviving spouse’s eligibility for
dependency and indemnity
compensation, would be eligible to
receive survivors pension at the rate
provided for in 38 U.S.C. 5503(d) will
receive survivors pension instead of
such compensation.
Unfunded Mandates
■
For the reasons set forth in the
preamble, VA proposes to amend 38
CFR chapter 1 as set forth below:
■
The Secretary certifies that this
proposed rule would not have a
significant economic impact on a
substantial number of small entities as
they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601–612. There
are no small entities involved with the
process and/or benefits associated with
this rulemaking. Therefore, pursuant to
5 U.S.C. 605(b), the initial and final
regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do
not apply.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Health care, Pensions, Radioactive
materials, Veterans, Vietnam.
*
*
*
*
*
3. Amend § 3.152 by:
a. Redesignating paragraph (b)(1) as
paragraph (b)(1)(i); and
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Surviving spouses.
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17358
Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules
pension’’ and adding, in their place, the
words ‘‘survivors pension’’.
(f) Medicaid-covered nursing home
care. * * *
*
*
*
*
*
§ 3.658
[FR Doc. 2024–04895 Filed 3–8–24; 8:45 am]
BILLING CODE 8320–01–P
[Amended]
5. Amend § 3.658 by, in paragraph (b),
removing the words ‘‘or compensation’’
and adding, in their place, the words
‘‘or death compensation’’.
■ 6. Amend § 3.702 by revising
paragraph (d) to read as follows:
■
[Docket No. 240304–0067]
*
*
*
*
*
(d)(1) Except as noted in paragraphs
(d)(2) and (g) of this section, an election
to receive dependency and indemnity
compensation in lieu of death
compensation is final, and the claimant
may not thereafter reelect death
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.
(2) A surviving spouse’s receipt of
survivors pension at the rate provided
for in 38 U.S.C. 5503(d) in lieu of
dependency and indemnity
compensation will not be a bar to the
surviving spouse’s receipt of such
compensation in the event the surviving
spouse becomes ineligible for survivors
pension at the rate provided for in 38
U.S.C. 5503(d).
*
*
*
*
*
■ 7. Amend part 3, by removing the
words ‘‘death pension’’, wherever it
appears, and adding, in their place, the
words ‘‘survivors pension’’.
PART 8—NATIONAL SERVICE LIFE
INSURANCE
8. The authority citation for part 8
continues to read as follows:
■
Authority: 38 U.S.C. 501, 1901–1929,
1981–1988, unless otherwise noted.
[Amended]
9. Amend § 8.4, in the introductory
text and paragraph (b), by removing the
words ‘‘death pension’’ and adding, in
their place, the words ‘‘survivors
pension’’.
ddrumheller on DSK120RN23PROD with PROPOSALS1
■
PART 20—BOARD OF VETERANS’
APPEALS: RULES OF PRACTICE
10. The authority citation for part 20
continues to read as follows:
■
Authority: 38 U.S.C. 501(a), and as noted
in specific sections.
§ 20.104
[Amended]
11. Amend § 20.104, in paragraph
(a)(4), by removing the words ‘‘death
■
VerDate Sep<11>2014
17:20 Mar 08, 2024
Jkt 262001
National Oceanic and Atmospheric
Administration
50 CFR Part 600
§ 3.702 Dependency and indemnity
compensation.
§ 8.4
DEPARTMENT OF COMMERCE
RIN 0648–BM26
Confidentiality of Information
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule, request for
comments.
AGENCY:
The National Marine
Fisheries Service (NMFS) proposes
revisions to existing regulations
governing the confidentiality of
information submitted in compliance
with any requirement or regulation
under the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; MSA). The
purposes of these revisions are to make
both substantive and non-substantive
changes in light of amendments to the
MSA under the 1996 Sustainable
Fisheries Act (SFA) and the 2006
Magnuson-Stevens Fishery
Conservation and Management
Reauthorization Act (MSRA) and
amendments to the High Seas Driftnet
Fishing Moratorium Protection Act
(FMPA) under the 2015 Illegal,
Unreported and Unregulated Fishing
Enforcement Act (IUU Fishing Act).
NMFS proposes additional revisions
necessary to address some issues that
concern its application of the MSA
confidentiality of information
requirements to information requests.
DATES: Comments on this proposed rule
must be received on or before April 25,
2024.
ADDRESSES: You may submit comments
on this proposed rule, identified by
NOAA–HQ–2023–0146, by the
following method:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and enter
NOAA–HQ–2023–0146, in the Search
box. Click on the ‘‘Comment’’ icon,
complete the required fields, and enter
or attach your comments.
Instructions: Comments must be
submitted by the above method to
SUMMARY:
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
ensure that the comments are received,
documented, and considered by NMFS.
Comments sent by any other method, to
any other address or individual, or
received after the end of the comment
period, may not be considered. All
comments received are a part of the
public record and NMFS will post them
for public viewing on https://
www.regulations.gov without change.
All personal identifying information
(e.g., name, address, etc.), confidential
business information, or otherwise
sensitive information submitted
voluntarily by the sender is publicly
accessible. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, or Adobe PDF file formats
only.
Electronic Access: Information
relevant to this proposed rule, which
includes a regulatory impact review and
a Regulatory Flexibility Act
certification, is accessible via the
internet at: https://www.regulations.gov/
docket/NOAA-HQ-2023-0146.
FOR FURTHER INFORMATION CONTACT: Karl
Moline at (301) 427–8225 and via Email:
NMFS.MSA_C@noaa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The MSA authorizes the Secretary of
Commerce (Secretary) to regulate
domestic fisheries, seaward of States to
the seaward limit of the U.S. Exclusive
Economic Zone (EEZ). See 16 U.S.C.
1811, 1802(11) (further explaining
United States sovereign rights to fish
and fishery management authority and
defining EEZ). NMFS implements and
administers the MSA through authority
delegated from the Secretary.
Conservation and management of fish
stocks is accomplished through Fishery
Management Plans and plan
amendments (collectively, FMPs) and
implementing regulations. To assist in
the fishery management process, eight
regional fishery management councils
(Councils) prepare FMPs for fisheries
within specified geographic areas and
submit them to NMFS. Id. 1853. NMFS
directly prepares and amends the FMP
for highly migratory species in the
Atlantic Ocean, Gulf of Mexico, and
Caribbean Sea. Id. 1852(a)(3), 1854(g).
For any FMPs that it approves, NMFS
promulgates regulations to effectuate
them.
Information collection is an essential
part of the fishery management process.
Conservation and management
measures in FMPs and in their
implementing regulations must be based
E:\FR\FM\11MRP1.SGM
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Agencies
[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Proposed Rules]
[Pages 17354-17358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04895]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3, 8 and 20
RIN 2900-AR32
Clarification of VA's Processing of Survivors Benefits Claims
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations concerning survivors benefits claims. With
respect to claims processing, VA proposes to clarify that, if VA
determines that a surviving spouse or child is eligible for dependency
and indemnity compensation (DIC), VA would concurrently deny the co-
existing claim for survivors pension, except where paying survivors
pension would be more beneficial to the claimant, which would only be
the case if the claimant is the veteran's surviving spouse and the
claimant's application indicates that the claimant does not have any
dependents, is currently in a nursing home, and has applied for or is
currently receiving Medicaid. The intended effect of this rulemaking is
to streamline and improve the timeliness of the adjudication of claims
processing for VA survivors benefits while ensuring that claimants
receive the greatest benefit allowed by law.
DATES: Comments must be received on or before May 10, 2024.
ADDRESSES: Comments must be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: https://www.regulations.gov. VA will not post on
Regulations.gov public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm
the individual. VA encourages individuals not to submit duplicative
comments; however, we will post comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments. Any public comment received after the comment period's
closing date is considered late and will not be considered in the final
rulemaking. In accordance with the Providing Accountability Through
Transparency Act of 2023, a 100 word Plain-Language Summary of this
proposed rule is available at Regulations.gov, under RIN-2900-AR32.
FOR FURTHER INFORMATION CONTACT: Eric Baltimore, Management and Program
Analyst, Pension and Fiduciary Service (21PF), 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: A surviving spouse or child of a Veteran may
apply for any of several survivors benefits including DIC, survivors
pension, and/or accrued benefits. See 38 U.S.C. 5101(b)(1). VA is
required to address and make a decision on each benefit, irrespective
of claimant intent, whenever a surviving spouse or child submits a
claim for DIC, survivors pension, and/or accrued benefits on VA Form
21P-534 or 21P-534EZ. This proposed rule would only address VA's
processing of the survivors pension claims of surviving spouses and
children whom VA has determined are eligible for DIC. VA is not
proposing to change its processing of survivors pension claims in cases
in which the claimant is ineligible for DIC. Nor is VA proposing to
change its processing of accrued benefits claims.
DIC and survivors pension provide a basic rate of payment with
increases where (1) the survivor is in need of regular aid and
attendance, (2) the survivor is permanently housebound, or (3) the
surviving spouse has custody of the veteran's minor child(ren), and, in
each instance, the DIC rate exceeds the maximum annual pension rate.
Compare 38 U.S.C. 1311 (providing the DIC rates for surviving spouses)
and 1313 (providing the DIC rates for children), with 38 U.S.C. 1541
(providing the survivors pension rates for surviving spouses) and 1542
(providing the survivors pension rates for children). Because DIC and
survivors pension are not payable concurrently, 38 U.S.C. 1317(a), once
VA finds the survivor eligible for DIC, specific factual findings with
respect to survivors pension will not result in VA paying additional
benefits to that survivor.
``VA possesses a duty not only to individual claimants, but to the
effective functioning of the veterans [benefits] system as a whole.''
Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs, 818 F.3d 1336,
1354 (Fed. Cir. 2016). Recipients of VA's survivors benefits--
especially survivors pension--are some of VA's most vulnerable
beneficiaries. Most beneficiaries who receive survivors pension are
elderly widows or widowers who just lost their spouse's household
income and have income below the maximum annual pension rate of $11,102
(surviving spouse with no dependents effective December 1, 2023),
established by Congress for entitlement to VA survivors pension. VA
believes this population is best served by VA focusing its adjudication
resources in the areas more likely to result in benefits flowing to
survivors. To this end, VA proposes to amend 38 CFR 3.152 to
specifically state the general rule that a grant of DIC would result in
the automatic denial of survivors pension, to ensure that a surviving
spouse or child would receive the greater benefit more quickly.
VA acknowledges its statutory obligation to ``decide all questions
of law and fact necessary to a decision by [VA] under a law that
affects the provision of benefits by [VA] to veterans or the dependents
or survivors of veterans.'' 38 U.S.C. 511(a). A ``decision'' either
grants or denies the
[[Page 17355]]
benefit sought. Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000).
With respect to claims for DIC and survivors pension, Congress has
provided a general rule of decision by statute, stating that no person
eligible for DIC shall be eligible for survivors pension. 38 U.S.C.
1316(b), 1317(a). Therefore, once VA finds eligibility for DIC, there
are no additional findings of law or fact necessary to decide the claim
for survivors pension. The survivor's eligibility for DIC itself
precludes eligibility for survivors pension. VA proposes to amend
Sec. Sec. 3.5(c) and 3.152(b)(1) to clarify this point.
VA also recognizes that Congress has enacted an exception to the
rule provided in 38 U.S.C. 1317(a), permitting a surviving spouse who
is eligible for DIC to nonetheless receive survivors pension in certain
circumstances. 38 U.S.C. 1317(b). VA proposes to amend Sec. Sec. 3.5
and 3.152 to account for this exception as well. For context, 38 U.S.C.
1317(a) states, in relevant part, ``[e]xcept as provided in subsection
(b), no person eligible for [DIC] by reason of any death occurring
after December 31, 1956, shall be eligible by reason of such death for
any payments under . . . provisions of law administered by the
Secretary providing for the payment of . . . death pension.'' Because
survivors pension is only payable to surviving spouses and children of
wartime veterans, this restriction on payment of survivors pension to
someone eligible for DIC only affects those individuals. The exception
states that ``[a] surviving spouse who is eligible for [DIC] may elect
to receive death pension instead of such compensation.'' 38 U.S.C.
1317(b). When considered in isolation, subsection (b) appears to create
an unfettered right of election for surviving spouses, which would mean
that the general rule only applies to children. Yet, of the 259,462
surviving spouses and children receiving DIC at the time the exception
was enacted, less than nine percent were children. More than 91 percent
were surviving spouses. Because ``it is hard to even imagine a rational
statutory exception that is intentionally designed to swallow the
rule,'' AFGE v. Trump, 318 F. Supp. 3d 370, 434 (D.D.C. 2018), vacated
on other grounds by 929 F.3d 748, 761 (D.C. Cir. 2019)), ``[i]n
construing provisions . . . in which a general statement of policy is
qualified by an exception, [courts] usually read the exception narrowly
in order to preserve the primary operation of the provision.'' Comm'r
v. Clark, 489 U.S. 726, 739 (1989) (citing Phillips, Inc. v. Walling,
324 U.S. 490, 493 (1945)). Therefore, we turn to legislative history
for further insight into congressional intent. See Reid v. Department
of Commerce, 793 F.2d 277, 282 (Fed. Cir. 1986) (``resort[ing] to
legislative history to ascertain the intent of Congress'' when ``a
literal reading of the statute'' ``would lead to a result at variance
with the policy of the legislation as a whole'').
The legislative history discusses a surviving spouse's election of
survivors pension solely in terms of cost savings for the Federal
Government. See Public Law 103-446, sec. 111 (captioned ``Cost-Savings
Provisions''). As stated previously, the applicable DIC rate always
exceeds the maximum annual pension rate. Therefore, looking only at the
monthly benefit payments, the default rule that a person eligible for
the greater benefit is ineligible for the lesser benefit would increase
costs. From that perspective, it would appear that permitting any
surviving spouse to elect the lesser benefit would yield the most cost
savings. However, VA's costs are not limited to benefit payments. VA
also incurs adjudication-related costs. The default rule in section
1317(a) reduces adjudication costs because VA only has to adjudicate
entitlement to the lesser benefit if the claimant is ineligible for the
greater benefit. Cost savings can only be realized through an election
provision if enough claimants actually elect the lesser benefit that
the aggregate reduction in benefit payments actually exceeds the
additional administrative costs associated with the adjudication of
entitlement to the lesser benefit.
Yet, the Court of Appeals for Veterans Claims has recognized the
high improbability that a claimant would intentionally seek less than
the maximum benefit. AB v. Brown, 6 Vet. App. 35, 38 (1993) (``the
claimant will generally be presumed to be seeking the maximum benefit
allowed by law and regulation''). Further, it is very unlikely that
Congress established section 1317(b) for the purpose of allowing
claimants to elect the lesser benefits where doing so is contrary to
their own interests.
Nonetheless, the legislative history does identify one situation in
which the payment of survivors pension would result in more funds
actually ending up in the hands of the claimant, while at the same time
yielding cost savings to the Federal government: if a surviving spouse
who has no dependents is receiving nursing home care paid for by a
joint Federal and state program known as Medicaid. If an individual
does not have dependents, Medicaid will not pay for the individual's
nursing home care unless all of the individual's income is first used
toward the nursing home costs. As a result, if VA pension constitutes
countable income for Medicaid purposes, the VA pension program is
essentially paying for nursing home care that would otherwise be paid
for by Medicaid. Recognizing this, in 1990, Congress enacted a
provision providing pension payments at $90.00 per month for Veterans
who have no dependents and are receiving nursing home care at Medicaid
expense. H.R. Rep. No. 101-964, at 982-83 (1990). Congress also made
clear that the $90.00 per month was not countable income for Medicaid
purposes, which provided an incentive for Veterans to elect the pension
benefit.
In 1992, Congress extended the same policy to surviving spouses.
Veterans Benefits Act of 1992, Public Law 102-568, sec. 601(a).
However, the statutory bar in 38 U.S.C. 1317(a) against eligibility for
survivors pension when an individual was eligible for DIC limited the
cost savings to the Federal Government, because it required VA to pay
DIC rather than the protected pension benefit. To address this, in
1994, Congress enacted 38 U.S.C. 1317(b) as a cost-saving measure,
enabling surviving spouses to elect survivors pension in lieu of DIC.
H.R. Rep. No. 103-669, at 11. A surviving spouse who has no dependents
and requires nursing home care and who receives DIC would have to use
all the DIC for nursing home care costs before Medicaid coverage would
apply. A surviving spouse requiring nursing home care may, instead,
choose to elect survivors pension to receive $90.00 per month, which is
not countable income for Medicaid purposes, in addition to receiving
Medicaid coverage. As a result, the surviving spouse's nursing home
care costs would be covered more by Medicaid and less by VA and the
Federal Government.
VA acknowledges that the text of section 1317(b) is not expressly
limited to the circumstance involving a surviving spouse who has no
dependents and requires nursing home care paid by Medicaid or with an
application pending with Medicaid for such care. However, the only fact
pattern addressed in legislative history materials produced during the
conference report stage was that involving surviving spouses who do not
have any dependents and who are receiving nursing home care paid by
Medicaid, see H.R. Rep. No. 103-669 at 11; see 140 Cong. Rec. 11355
(daily ed. Oct. 7, 1994) (joint explanatory statement) (``This would
permit surviving spouses who are in Medicaid-covered nursing homes and
who receive
[[Page 17356]]
DIC to elect to receive death pension, in order to be able to retain
$90 of their monthly benefits''). ``The conference report stage is
closest to final passage and is generally thus the best indicator of
legislative meaning apart from the statute itself.'' Disabled in Action
of Metro. New York v. Hammons, 202 F.3d 110, 125 (2d Cir. 2000).
Moreover, VA is unaware of a comparable fact pattern in which a
lesser VA benefit may result in a greater aggregate recovery for a
claimant. As noted above, Congress established in section 1317(a) a
general rule that entitlement to DIC precludes entitlement to survivors
pension, and the exception in section 1317(b) was enacted to address a
narrow situation, in which the exception serves both to maximize VA
payments to the claimant and to limit Federal expenditures that would
otherwise be diverted to third parties. VA believes that applying the
exception only to those cases involving a surviving spouse who has no
dependents and requires nursing home care paid by Medicaid or with an
application pending Medicare for such care best balances the goals of
section 1317(a) and (b), and best serves VA claimants by avoiding the
unnecessary case-specific and systemic delays and the Federal
expenditures that would result from developing and deciding pension
claims that would not maximize VA benefits to claimants.
Therefore, VA interprets section 1317(b) as applying only in the
circumstance involving a surviving spouse who has no dependents and
requires nursing home care paid by Medicaid or with an application
pending with Medicaid for such care. Because survivors pension would be
the better benefit for the surviving spouse when a surviving spouse
with no dependents is receiving nursing home care paid by Medicaid, VA
would automatically grant survivors pension, provide a formal rating
decision denying DIC, and inform the surviving spouse why VA is
granting survivors pension. If VA grants a surviving spouse survivors
pension in lieu of DIC as the more advantageous benefit, the surviving
spouse is not barred from reapplying for and receiving DIC in the event
the surviving spouse becomes ineligible for survivors pension at the
rate provided for in 38 U.S.C. 5503(d). In that circumstance, if the
surviving spouse's application were received within one year of the
date on which Medicaid-covered nursing home care ended, VA would deem
the application to have been received on the date that Medicaid covered
nursing home care ended and DIC benefits would be effective as of the
calendar month after Medicaid-covered nursing home care ended.
Otherwise, DIC benefits would not be effective earlier than the date VA
receives the claim. Similarly, if a surviving spouse who, but for
receipt of DIC, would be eligible for survivors pension begins
receiving Medicaid-covered nursing home care, the surviving spouse
would not be barred from reapplying for and receiving survivors pension
at the rate provided for in section 5503(d). In that circumstance, the
effective date of survivors pension would be based on the date of claim
for survivors pension and the date DIC payments were discontinued. VA
proposes to amend Sec. Sec. 3.402 and 3.502(f) to address this change.
Furthermore, it is not VA's intent to eliminate a survivor's
opportunity to claim more than one benefit on a single form--rather it
is to reduce the administrative burden for both VA and the claimant and
to expedite the delivery of benefits to survivors. If VA determines
that the claimant is the veteran's surviving spouse or child, but that
the veteran's death does not entitle the veteran's survivor to DIC, see
38 U.S.C. 1310, 1318, VA will decide the additional questions of fact
or law necessary to grant or deny survivors pension. Similarly, where
VA determines that the claimant is the veteran's surviving spouse and
the veteran's death entitles the veteran's survivors to DIC, VA will
determine whether, but for DIC entitlement, the surviving spouse would
be entitled to survivors pension at the rate provided for in 38 U.S.C.
5503(d). In addition, in all cases, VA will provide notice of its
decision with respect to DIC and survivors pension in accordance with
38 U.S.C. 5104, including any favorable findings that were necessary to
those decisions and provide such decision notification in writing to
the claimant and his or her representative, if applicable.
Therefore, VA proposes to amend Sec. Sec. 3.5(c), 3.152(b)(1) and
3.702(d)(2) to clarify VA's authority to pay the higher or better
benefit between DIC and survivors pension. The intended effect of this
amendment is to streamline and improve the timeliness of the
adjudication of claims processing for VA survivor benefits and deliver
decisions on claimed benefits and services more timely to beneficiaries
in need and during a difficult time.
VA also proposes to replace the term ``death pension'' with the
term ``survivors pension'' each place it appears in VA's implementing
regulations. This will ensure that the language of VA's implementing
regulations aligns with current usage. Also, VA proposes to replace the
words ``or compensation'' with ``or death compensation'' each place
they appear in VA's implementing regulations.
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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. Executive Order 14094 (Executive order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 and Executive
Order 13563. The Office of Information and Regulatory Affairs has
determined that this rulemaking is not a significant regulatory action
under Executive Order 12866, as amended by Executive Order 14094. The
Regulatory Impact Analysis associated with this rulemaking can be found
as a supporting document at www.regulations.gov.
Paperwork Reduction Act
Although this proposed 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
Sec. 3.152 is currently approved by the Office of Management and
Budget and has been assigned OMB control number 2900-0004.
VA's proposed changes would not result in a reduction of an
information collection burden. A surviving spouse or child applies for
both DIC and survivors pension using a single form. While some of the
information solicited by the form is pertinent to either benefit (e.g.,
the claimant's relationship to the veteran and information regarding
the veteran's service), other information is specific to one benefit
(e.g., income and asset information with respect to survivor's
pension). Pursuant to this rulemaking, if VA grants DIC to a
[[Page 17357]]
surviving spouse who is not eligible for the exception under 38 U.S.C.
1317(b), or to a child, VA would be able to adjudicate the application
for survivors pension without making specific factual findings
regarding income and net worth because the claimant's entitlement to
DIC would itself be a bar to entitlement to survivor's pension.
Conversely, if VA denies DIC or if the surviving spouse had potential
eligibility for the exception under 38 U.S.C. 1317(b), VA would have a
legal obligation to solicit income and net worth information from the
claimant. Isenhart v. Derwinski, 3 Vet. App. 177, 179-80 (1992). Yet,
whether that information would be necessary to the adjudication of the
application would only be known after VA makes a determination
regarding eligibility for DIC. Considering VA's duties to individual
claimants as well as the functions of the benefits system as a whole,
VA believes that continuing to collect information pertinent to
survivors pension entitlement at the time a surviving spouse or child
applies for DIC would promote streamlined claims processing and reduce
the likelihood that claimants would be subject to multiple, separate
requests for information.
Regulatory Flexibility Act
The Secretary certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. There are no small entities involved with the process and/or
benefits associated with this rulemaking. Therefore, pursuant to 5
U.S.C. 605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
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 proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
38 CFR Part 8
Life insurance, Military personnel, Veterans.
38 CFR Part 20
Administrative practice and procedure, Claims, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, signed and approved
this document on March 1, 2024, 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.
Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of General
Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR chapter 1 as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
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1. The authority citation for part 3, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
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2. Amend Sec. 3.5 by revising paragraph (c) to read as follows:
Sec. 3.5 Dependency and indemnity compensation.
* * * * *
(c) Exclusiveness of remedy. (1) Except as provided in paragraph
(c)(2) of this section, no person eligible for dependency and indemnity
compensation by reason of a death occurring on or after January 1,
1957, shall be eligible by reason of such death for survivors pension
or death compensation under any other law administered by the
Department of Veterans Affairs.
(2) A surviving spouse who, but for the surviving spouse's
eligibility for dependency and indemnity compensation, would be
eligible to receive survivors pension at the rate provided for in 38
U.S.C. 5503(d) will receive survivors pension instead of such
compensation.
(Authority: 38 U.S.C. 1317)
* * * * *
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3. Amend Sec. 3.152 by:
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a. Redesignating paragraph (b)(1) as paragraph (b)(1)(i); and
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b. Adding paragraph (b)(1)(ii).
The addition reads as follows:
Sec. 3.152 Claims for death benefits.
* * * * *
(b)(1)(i) * * *
(ii)(A) Except as provided in paragraph (b)(1)(ii)(B) of this
section, an award of dependency and indemnity compensation to a
surviving spouse or child will result in the denial of survivors
pension.
(B) With respect to a claim by a surviving spouse, if the evidence
establishes that, but for the surviving spouse's eligibility for
dependency and indemnity compensation, the surviving spouse would be
eligible to receive survivors pension at the rate provided for in 38
U.S.C. 5503(d), survivors pension will be paid instead of such
compensation.
(Authority: 38 U.S.C. 1317)
* * * * *
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4. Amend Sec. 3.402 by adding paragraph (d) to read as follows:
Sec. 3.402 Surviving spouse.
* * * * *
(d) Medicaid-covered nursing home care. (1) If a surviving spouse
spouse described in Sec. 3.152(b)(1)(ii)(B) stops receiving Medicaid-
covered nursing home care, dependency and indemnity compensation, if
otherwise in order, will be effective as of the date Medicaid coverage
ceased, if a claim for dependency and indemnity compensation is
received within one year of the date Medicaid coverage ceased;
otherwise, it will be effective as of the date of receipt of claim or
date entitlement arose, whichever is later.
(2) If a surviving spouse who is receiving dependency and indemnity
compensation and who, but for eligibility for dependency and indemnity
compensation, would be eligible for survivors pension, begins receiving
Medicaid-covered nursing home care, survivors pension will be effective
as of the first day of the month after dependency and indemnity
compensation was discontinued, if a claim for survivors pension is
received within one year of the date dependency and indemnity
compensation was discontinued; otherwise, it will be effective as of
the date of receipt of claim or date entitlement arose, whichever is
later.
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5. Amend Sec. 3.502 by revising the paragraph heading of paragraph (f)
to read as follows:
Sec. 3.502 Surviving spouses.
* * * * *
[[Page 17358]]
(f) Medicaid-covered nursing home care. * * *
* * * * *
Sec. 3.658 [Amended]
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5. Amend Sec. 3.658 by, in paragraph (b), removing the words ``or
compensation'' and adding, in their place, the words ``or death
compensation''.
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6. Amend Sec. 3.702 by revising paragraph (d) 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
in lieu of death compensation is final, and the claimant may not
thereafter reelect death 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.
(2) A surviving spouse's receipt of survivors pension at the rate
provided for in 38 U.S.C. 5503(d) in lieu of dependency and indemnity
compensation will not be a bar to the surviving spouse's receipt of
such compensation in the event the surviving spouse becomes ineligible
for survivors pension at the rate provided for in 38 U.S.C. 5503(d).
* * * * *
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7. Amend part 3, by removing the words ``death pension'', wherever it
appears, and adding, in their place, the words ``survivors pension''.
PART 8--NATIONAL SERVICE LIFE INSURANCE
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8. The authority citation for part 8 continues to read as follows:
Authority: 38 U.S.C. 501, 1901-1929, 1981-1988, unless otherwise
noted.
Sec. 8.4 [Amended]
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9. Amend Sec. 8.4, in the introductory text and paragraph (b), by
removing the words ``death pension'' and adding, in their place, the
words ``survivors pension''.
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
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10. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
Sec. 20.104 [Amended]
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11. Amend Sec. 20.104, in paragraph (a)(4), by removing the words
``death pension'' and adding, in their place, the words ``survivors
pension''.
[FR Doc. 2024-04895 Filed 3-8-24; 8:45 am]
BILLING CODE 8320-01-P