Fast Letter 07-07-07

[Wings]

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x

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DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

March 29, 2007

 

Director (00/21) In Reply Refer to: 211D

VA Regional Offices Fast Letter 07-07

 

SUBJ: Final Rule: Accrued Benefits

 

Purpose

 

A final rulemaking regarding accrued benefits was published in the Federal Register on December 29, 2006 at 71 FR 78368. The rulemaking amends 38 CFR 3.1000 to be consistent with 38 U.S.C. 5121 and to clarify certain concepts related to accrued benefits by explaining the phrases “entitled at death” and “due and unpaid”.  The effective date of the amendment is January 29, 2007.

 

 

Amendments

 

§ 3.1000(a)

 

Section 104 of the Veterans Benefits Act of 2003 (the “Act”), Public Law 108-183, amended 38 U.S.C. 5121, which addresses payment of certain accrued benefits upon the death of a beneficiary. Section 104(a) of the Act removed the two-year limitation on accrued benefits payable under 38 U.S.C. 5121. Section 104© of the Act made “technical amendments” to 38 U.S.C. 5121, including removal of the comma after “or decisions” in the introductory text of paragraph (a).

 

This comma is the same comma relied upon by the United States Court of Appeals for Veterans Claims in Bonny v. Principi, 16 Vet. App. 504 (2002), for interpreting 38 U.S.C. 5121 to require a distinction between accrued benefits and “benefits awarded but unpaid.”

 

Based on the statutory changes described above, we amended § 3.1000(a) by deleting the comma between the phrases “to which a payee was entitled at his death under existing ratings or decisions” and “or those based on evidence in the file at date of death”. We also deleted the phrase “for a period not to exceed 2 years prior to the last date of entitlement as provided in § 3.500(g).” Because § 3.500(g) was only used in § 3.1000 regarding the two year period, which was repealed by section 104(a) of the Act, and is not applicable otherwise to § 3.1000, we deleted the reference to § 3.500(g). We also changed the outdated phrase “his death” in current § 3.1000(a) to “his or her death”.

 

However, due to the effective dates of the Act, the distinctions from the Bonny decision are still applicable in a very limited number of cases. Determining which application applies involves looking at the time line for when the deceased beneficiary died and when claims for 38 U.S.C. 5121 benefits were received and decided.

 

To summarize, there are now three potential groups of claimants for accrued benefits under current law, whose eligibility varies as described on this table:

 

 

 

Deceased beneficiary died

prior to December 16, 2003

Deceased beneficiary died on or after December 16, 2003

Claim pending on December 16, 2003

Claim received on or after December 16, 2003

Does the one-year time limit to file the claim apply?

(1) Yes for accrued benefits

(1) Yes for accrued benefits

(1) Yes for accrued benefits

(2) No for benefits awarded but unpaid

(2) In this situation “accrued benefits” included benefits awarded but unpaid

(2) In this situation “accrued benefits” includes benefits awarded but unpaid

Does the two-year limitation on the benefit-payable period apply

(1) Yes for accrued benefits

(1) Yes for accrued benefits

(1) No

(2) No for benefits awarded but unpaid

(2) In this situation “accrued benefits” includes benefits awarded but unpaid

(2) This limitation does not apply if a deceased beneficiary died on or after December 16, 2003.

 

 

§ 3.1000(a)(4)

 

Section 104(b) of the Act also amended section 5121 to provide that surviving parents may claim accrued benefits upon the death of a child who had claimed benefits under 38 U.S.C. chapter 18. We added this provision at new § 3.1000(a)(4). This amendment applies when the child dies on or after December 16, 2003.

 

 

§ 3.1000(d)(4)

 

We additionally amended the definition of “[e]vidence in the file at date of death” in § 3.1000(d)(4) to “evidence in VA’s possession on or before the date of the beneficiary’s death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death.”

 

 

§ 3.1000(d)(5)

 

We also defined “claim for VA benefits pending on the date of death” in a new § 3.1000(d)(5) as “a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary’s claim to reopen a finally disallowed claim based upon new and material evidence or a deceased beneficiary’s claim of clear and unmistakable error in a prior rating or decision. Any new and material evidence must have been in VA’s possession on or before the date of the beneficiary’s death.”

 

 

§ 3.1000(i)

 

Finally, section 5121(a) authorizes payment to survivors only of periodic monetary benefits that were “due and unpaid” to a deceased beneficiary. Because VA is prohibited by 38 U.S.C. 5304© from paying compensation or pension to a veteran for any period in which the veteran received active service pay, no compensation or pension could have been “due” to a veteran for any period for which he or she actually received active service pay. Accordingly, for purposes of determining the amount of benefits payable to a survivor under section 5121(a), compensation or pension benefits could not have been “due and unpaid” to the veteran for any period for which the veteran received active service pay. Therefore, we added a new paragraph (i) to § 3.1000 to provide this explanation.

 

 

Enclosed is a copy of the Federal Register publication containing the text of the regulatory amendments. If you have questions concerning this regulatory amendment or this letter, please contact C&P’s Regulations Staff.

 

 

/S/

Bradley G. Mayes

Director

Compensation & Pension Service

 

Enclosure

 

FEDERAL REGISTER

Vol. 71, No. 250

 

Rules and Regulations

 

DEPARTMENT OF VETERANS AFFAIRS (VA)

 

38 CFR Part 3

 

RIN 2900-AM28

 

Accrued Benefits

 

71 FR 78368

 

DATE: Friday, December 29, 2006

 

ACTION: Final rule.

 

SUMMARY: The Department of Veterans Affairs (VA) amends its adjudication regulation regarding accrued benefits. The amendments are the result of changes in statute and are intended to clarify existing regulatory provisions. This document adopts as final rule, without change, the proposed rule published in the Federal Register on June 29, 2006.

 

EFFECTIVE DATE: January 29, 2007.

 

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, Policy and Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-7210.

 

SUPPLEMENTARY INFORMATION: In a document published in the Federal Register on June 29, 2006, (71 FR 37027), VA proposed to amend its regulations regarding accrued benefits to clarify existing regulatory provisions and to ensure consistency with section 104 of the Veterans Benefits Act of 2003, Public Law 108-183, which amended 38 U.S.C. 5121, with respect to payment of certain accrued benefits upon the death of a beneficiary.

The public comment period ended on August 28, 2006, and VA received no comments. Based on the rationale set forth in the proposed rule, we are adopting the provisions of the proposed rule as a final rule without change.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule would not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

Executive Order 12866 directs agencies to assess all 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, and other advantages; distributive impacts; and equity). The Executive Order classifies a "significant regulatory action," requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

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 year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents, 64.104, Pension for Non-Service-Connected Disability for Veterans, 64.105, Pension to Veterans Surviving Spouses, and Children, 64.109, Veterans Compensation for Service-Connected Disability, and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits, [*78369] Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Approved: December 7, 2006.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons set out in the preamble, VA amends 38 CFR part 3 (subpart A) as follows:

PART 3--ADJUDICATION

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

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

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

2. Amend § 3.1000 as follows:

a. In paragraph (a) introductory text, remove "at his death" and add, in its place, "at his or her death"; remove "decisions, or" and add, in its place, "decisions or"; and remove "for a period not to exceed 2 years prior to the last date of entitlement as provided in § 3.500(g)".

b. Redesignate paragraph (a)(4) as paragraph (a)(5).

c. Add a new paragraph (a)(4).

d. In paragraph (d)(4), add ", in support of a claim for VA benefits pending on the date of death" immediately following "before the date of death".

e. Add paragraph (d)(5).

f. Add paragraph (i).

The additions read as follows:

§ 3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon death of a beneficiary.

(a) * * *

(4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents.

* * * * *

(d) * * *

(5) Claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary's claim to reopen a finally disallowed claim based upon new and material evidence or a deceased beneficiary's claim of clear and unmistakable error in a prior rating or decision. Any new and material evidence must have been in VA's possession on or before the date of the beneficiary's death.

* * * * *

(i) Active service pay. Benefits awarded under this section do not include compensation or pension benefits for any period for which the veteran received active service pay.

(Authority: 38 U.S.C. 5304©.)

[FR Doc. E6-22339 Filed 12-28-06; 8:45 am]

BILLING CODE 8320-01-P

[Berta]

Boy- MORE GREAT INFO Wings!!!!!

I asked the GC to amend Bonny to include Sec 1151ers like me-

I better read this real good!

With either a proper AO decision from the VARO -claim in process now-

or if the GC amends 5121 to include all Sec 115lers

either way the VA owes me one additional year of retro due to Rod.

My request for a Pres Op on this from the GC made sense-

if the VA hastens a veteran's death bu piss poor medical care (documented) then their survivors should be eligible for all accrued or all potential retro the deceased vet-since the VA itself caused them to not be able to live long enough for the delimiting Dec 2003 date that Bonny contains.

I need to read this carefully-THANKS AGAIN!

[Wings]

Boy- MORE GREAT INFO Wings!!!!!

I asked the GC to amend Bonny to include Sec 1151ers like me-

I better read this real good!

With either a proper AO decision from the VARO -claim in process now-

or if the GC amends 5121 to include all Sec 115lers

either way the VA owes me one additional year of retro due to Rod.

My request for a Pres Op on this from the GC made sense-

if the VA hastens a veteran's death bu piss poor medical care (documented) then their survivors should be eligible for all accrued or all potential retro the deceased vet-since the VA itself caused them to not be able to live long enough for the delimiting Dec 2003 date that Bonny contains.

I need to read this carefully-THANKS AGAIN!

Berta,

Earlier Fast Letter (2006) re: accrued benefits FYI ~Wings

 

 

 

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

 

November 14, 2006

In Reply Refer To: 211

Fast Letter 06-24

Director (00/21)

All VA Regional Offices

 

 

SUBJ: Withdrawal of Office of General Counsel Precedent Opinion (VAOPGCPREC) 6-93 in Part and VAOPGCPREC 12-94 in Full.

 

Background

 

VAOPGCPREC 6-93 is withdrawn in part and VAOPGCPREC 12-94 is withdrawn in full.

 

VAOPGCPREC 6-93 held in part that an award of accrued benefits under 38 USC § 5121(A) may be based on logical inferences from information in the file at the date of the beneficiary’s death. VAOPGCPREC 12-94 clarified VAOPGCPREC 6-93 by holding that medical expenses routinely reported and expected could form the basis for a determination that evidence in the file at the date of the veteran’s death permitted prospective estimation of medical expenses for accrued benefits purposes. Further, OGC found that such expenses could form the basis of an accrued claim even if the expenses had not been recorded as recurring for purposes of calculating current monthly payment.

 

Effective November 27, 2002, VA amended its accrued benefits regulations at 38 CFR § 3.1000(d)(4) to revise the definition of “evidence in the file at date of death” to make clear that accrued benefits may only be based on evidence in VA’s possession on the date of the beneficiary’s death.

 

VA also deleted certain provisions of M21-1 that were inconsistent with the rule, including provisions that had permitted awards of accrued benefits to be “based on inferences or prospective estimation drawn from information in file on the date of death.”

 

VAOPGCPREC 6-93 also held information contained in an eligibility report submitted after the beneficiary’s death may not be considered “evidence in the file at date of death” for purposes of an award of accrued pension benefits under 38 USC § 5121(a). This holding is unaffected by the 2002 amendments and remains valid.

 

To prevent potential confusion, effective August 11, 2006, the OGC has withdrawn paragraphs 6, 7, and 8 and holding (b) of VAOPGCPREC 6-93 and all of VAOPGCPREC 12-94.

 

Questions

 

If you have questions or need additional information, you should e-mail your inquiry to the Q&A mailbox at VAVBAWAS/CO/21Q&A.

 

 

 

/s/

Bradley G. Mayes

Acting Director

Compensation and Pension Service