[Federal Register Volume 62, Number 70 (Friday, April 11, 1997)]
[Rules and Regulations]
[Page 17706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9445]
[[Page 17706]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI57
Retroactive Payments Due to a Liberalizing Law or VA Issue
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulation regarding retroactive payments of compensation,
pension and dependency and indemnity compensation due to a liberalizing
law or VA issue. The change is necessary to bring the regulation into
conformance with a U.S. Court of Veterans Appeals' decision.
EFFECTIVE DATE: This amendment is effective June 12, 1996.
FOR FURTHER INFORMATION CONTACT: Laurence Freiheit, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420, (202)
273-7252.
SUPPLEMENTARY INFORMATION: Under the provisions of 38 U.S.C. 5110(a)
and 38 CFR 3.400, awards of compensation, pension and dependency and
indemnity compensation benefits are generally effective on the date VA
receives the claim or the date entitlement arose, whichever is later.
However, 38 U.S.C. 5110(g) provides an exception: Where benefits are
awarded or increased based on a change in law or an administrative
issue, benefits are awarded based on facts found but not earlier than
the effective date of the law or issue and not more than one year prior
to the earlier of the date of application or administrative
determination of entitlement. The purpose of section 5110(g) was to
provide a one-year grace period, such as that allowed after service
discharge or death, for potential beneficiaries who would otherwise be
penalized by not filing promptly.
The implementing regulation for section 5110(g) is 38 CFR 3.114.
Section 3.114(a) states that the effective date of an award or increase
made pursuant to a liberalizing law or VA issue will be made in
accordance with facts found but not earlier than the effective date of
the law or administrative issue. It goes on to state that, in order for
a claimant to be eligible for a retroactive award, the evidence must
show that he or she met all eligibility criteria for the liberalized
benefit on the effective date of the liberalizing law or issue and that
the eligibility existed continuously from that date to the date of
claim or administrative determination of entitlement.
In McCay v. Brown, 9 Vet. App. 183 (1996), the U.S. Court of
Veterans Appeals (the Court) noted that both section 5110(g) and
Sec. 3.114(a) are silent as to a liberalizing law or issue with a
retroactive effective date. The Court stated that the requirement that
the claimant must have met all eligibility criteria on the effective
date of the law or issue fulfills the intent of section 5110(g) when
the liberalizing law is prospective. However, the Court held that,
where the liberalizing law has a retroactive effective date, it is not
a permissible construction of section 5110(g) and would result in
unequal treatment of claimants. This document amends Sec. 3.114(a) to
make it clear that that requirement applies only when liberalizing laws
or issues take effect on or after the date of enactment or issuance.
The effective date of this amendment is June 12, 1996, the date of
the Court's decision in McCay v. Brown, 9 Vet. App. 183 (1996).
Since this amendment merely implements a Court decision, the
Secretary finds under 5 U.S.C. 553(b) that prior notice and comment are
unnecessary and that there is a basis for dispensing with a 30-day
delay of the effective date.
Because no notice of proposed rulemaking was required in connection
with the adoption of this final rule, no regulatory flexibility
analysis is required under the Regulatory Flexibility Act (5 U.S.C.
601-612.) Even so, the Secretary hereby certifies that these regulatory
amendments 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. These amendments are not substantive
and do not affect any small entities.
The Catalog of Federal Domestic Assistance program numbers are
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: February 12, 1997.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A, continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. In Sec. 3.114(a) the second sentence is amended by removing ``In
order'' and adding, in its place, ``Where pension, compensation, or
dependency and indemnity compensation is awarded or increased pursuant
to a liberalizing law or VA issue which became effective on or after
the date of its enactment or issuance, in order for a claimant''.
[FR Doc. 97-9445 Filed 4-10-97; 8:45 am]
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