Proposed Rule: Compensation, Pension, Burial, and Related Benefits: Payments To Beneficiaries Who Are Eligible For More Than One Benefit

Tuesday,
October 2, 2007
Part II
Department of
Veterans Affairs
38 CFR Part 5
Payments to Beneficiaries Who Are
Eligible for More Than One Benefit;
Proposed Rule
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56136 Federal Register / Vol. 72, No. 190 / Tuesday, October 2, 2007 / Proposed Rules
DEPARTMENT OF VETERANS the clarity and consistency of existing Employees’ Compensation Act for death
AFFAIRS VA regulations. The Project responds to or disability due to Federal civilian
a recommendation made in the October employment.
38 CFR Part 5 5.752 Procedures for elections between
2001 ‘‘VA Claims Processing Task
VA benefits and compensation under the
RIN 2900–AL95 Force: Report to the Secretary of Federal Employees’ Compensation Act.
Veterans Affairs.’’ The Task Force 5.753 Payment of VA benefits and civil
Payments to Beneficiaries Who Are recommended that the compensation service retirement benefits for the same
Eligible for More Than One Benefit and pension regulations be rewritten period.
and reorganized in order to improve the 5.754 Effect of payment of compensation
AGENCY: Department of Veterans Affairs. VA’s claims adjudication process. under the Radiation Exposure
ACTION: Proposed rule. Therefore, the Project began its efforts Compensation Act of 1990 on payment
of certain VA benefits.
by reviewing, reorganizing, and
SUMMARY: The Department of Veterans Rules Concerning the Receipt of Multiple VA
redrafting the content of the regulations Benefits
Affairs (VA) proposes to reorganize and in 38 CFR part 3 governing the
rewrite in plain language provisions 5.756 Prohibition against concurrent
compensation and pension program of receipt of certain VA benefits based on
applicable to payments to beneficiaries the Veterans Benefits Administration. the service of the same veteran.
who are eligible for more than one These regulations are among the most 5.757 Elections between VA disability or
benefit. These revisions are proposed as difficult VA regulations for readers to death compensation and pension.
part of VA’s rewrite and reorganization understand and apply. 5.758 Electing Improved Pension instead
of all of its compensation and pension Once rewritten, the proposed of Old-Law Pension or Section 306
rules in a logical, claimant-focused, and regulations will be published in several Pension.
user-friendly format. The intended 5.759 Election between death
portions for public review and compensation and dependency and
effect of the proposed revisions is to comment. This is one such portion. It
assist claimants, beneficiaries, and VA indemnity compensation.
includes proposed rules regarding 5.760 Electing Improved Death Pension
personnel in locating and understanding payment to beneficiaries who are instead of dependency and indemnity
these rules. eligible for more than one benefit. After compensation.
DATES: Comments must be received by review and consideration of public 5.761 Concurrent receipt of disability
VA on or before December 3, 2007. comments, final versions of these compensation, pension, or death benefits
ADDRESSES: Written comments may be proposed regulations will ultimately be by a surviving spouse based on the
service of more than one veteran.
submitted through published in a new part 5 in 38 CFR. 5.762 Payment of multiple VA benefits to
www.Regulations.gov; by mail or hand- Outline a surviving child based on the service of
delivery to Director, Regulations more than one veteran.
Management (00REG), Department of Overview of New Part 5 Organization
Overview of This Notice of Proposed 5.763 Payment of multiple VA benefits to
Veterans Affairs, 810 Vermont Avenue, Rulemaking more than one child based on the service
NW., Room 1068, Washington, DC Table Comparing Current Part 3 Rules With of the same veteran.
20420; or by fax to (202) 273–9026 (not Proposed Part 5 Rules 5.764 Payment of Survivors’ and
a toll free number). Comments should Content of Proposed Regulations Dependents’ Educational Assistance and
indicate that they are submitted in Payments to Beneficiaries Who Are Eligible VA death pension or dependency and
for More Than One Benefit—General indemnity compensation for the same
response to ‘‘RIN 2900–AL95–Payments
Provisions period.
to Beneficiaries Who Are Eligible for Non-inclusion of Other Part 3 Provisions
More than One Benefit.’’ Copies of 5.740 Definitions relating to elections.
5.741 Persons who may make an election. Endnote Regarding Amendatory Language
comments received will be available for 5.742 Finality of elections; cancellation of Paperwork Reduction Act
public inspection in the Office of certain elections. Regulatory Flexibility Act
Regulation Policy and Management, 5.743 General effective dates for Executive Order 12866
Room 1063B, between the hours of 8 awarding, reducing, or discontinuing VA Unfunded Mandates
a.m. and 4:30 p.m., Monday through benefits because of an election. Catalog of Federal Domestic Assistance
Friday (except holidays). Please call Payments From Service Departments and the Numbers and Titles
Effects of Those Payments on VA List of Subjects in 38 CFR Part 5
(202) 273–9515 (not a toll free number)
for an appointment. In addition, during Benefits for Veterans
Overview of New Part 5 Organization
5.745 Entitlement to concurrent receipt of
the comment period, comments may be military retired pay and VA disability We plan to organize the part 5
viewed online through the Federal compensation. regulations so that most of the
Docket Management System (FDMS) at 5.746 Prohibition against receipt of active provisions governing a specific benefit
www.Regulations.gov. military service pay and VA benefits for are located in the same subpart, with
FOR FURTHER INFORMATION CONTACT: the same period.
general provisions pertaining to all
William F. Russo, Director, Regulations 5.747 Effect of military readjustment pay,
disability severance pay, and separation compensation and pension benefits also
Management (00REG), Department of grouped together. We believe this
pay on VA benefits.
Veterans Affairs, 810 Vermont Avenue, 5.748 Concurrent receipt of VA disability organization will enable claimants,
NW., Washington, DC 20420, (202) 273– compensation and retirement pay by beneficiaries, and their representatives,
9515 (not a toll free number). certain officers of the Public Health as well as VA personnel, to find
SUPPLEMENTARY INFORMATION: The Service. information relating to a specific benefit
Secretary of Veterans Affairs has Payments From Federal Agencies and the more quickly than the organization
established an Office of Regulation Effects of Those Payments on VA provided in current part 3.
Policy and Management to provide Benefits for Veterans and Survivors The first major subdivision would be
5.750 Election between VA benefits and
centralized management and compensation under the Federal
‘‘Subpart A—General Provisions.’’ It
coordination of VA’s rulemaking Employees’ Compensation Act for death would include information regarding
process. One of the major functions of or disability due to military service. the scope of the regulations in new part
this office is to oversee a Regulation 5.751 Election between VA benefits and 5, general definitions, and general
Rewrite Project (the Project) to improve compensation under the Federal policy provisions for this part. This
Federal Register / Vol. 72, No. 190 / Tuesday, October 2, 2007 / Proposed Rules 56137
subpart was published as proposed on would be published in two separate The final subpart, ‘‘Subpart M—
March 31, 2006. See 71 FR 16464. NPRMs due to its size. The portion Apportionments to Dependents and
‘‘Subpart B—Service Requirements for concerning Old-Law Pension, Section Payments to Fiduciaries and
Veterans’’ would include information 306 Pension, and elections of Improved Incarcerated Beneficiaries,’’ would
regarding a veteran’s military service, Pension was published as proposed on include regulations governing
including the minimum service December 27, 2004. See 69 FR 77578. apportionments, benefits for
requirement, types of service, periods of ‘‘Subpart G—Dependency and incarcerated beneficiaries, and
war, and service evidence requirements. Indemnity Compensation, Death guardianship.
This subpart was published as proposed Compensation, Accrued Benefits, and Some of the regulations in this NPRM
on January 30, 2004. See 69 FR 4820. Special Rules Applicable Upon Death of cross-reference other compensation and
‘‘Subpart C—Adjudicative Process, a Beneficiary,’’ would contain pension regulations. If those regulations
General’’ would inform readers about regulations governing claims for have been published in this or earlier
types of claims and filing procedures, dependency and indemnity NPRMs for the Project, we cite the
VA’s duties, rights and responsibilities compensation (DIC); death proposed part 5 section. We also
of claimants and beneficiaries, general compensation; accrued benefits; benefits include, in the relevant portion of the
evidence requirements, and effective awarded, but unpaid at death; and Supplementary Information, the Federal
dates for new awards, as well as various special rules that apply to the Register page where a proposed part 5
revision of decisions and protection of disposition of VA benefits, or proceeds section published in an earlier NPRM
VA ratings. This subpart will be of VA benefits, when a beneficiary dies. may be found. However, where a
published as three separate Notices of This subpart would also include related regulation proposed in this NPRM
Proposed Rulemaking (NPRMs) due to definitions, effective-date rules, and would cross-reference a proposed part 5
its size. The first, concerning the duties rate-of-payment rules. This subpart was regulation that has not yet been
of VA and the rights and responsibilities published as two separate NPRMs due published, we cite to the current part 3
of claimants and beneficiaries, was to its size. The portion concerning regulation that deals with the same
published as proposed on May 10, 2005. accrued benefits, death compensation, subject matter. The current part 3
See 70 FR 24680. The second, covering special rules applicable upon the death section we cite may differ from its
general evidence requirements, effective of a beneficiary, and several effective- eventual part 5 counterpart in some
dates for awards, revision of decisions, date rules, was published as proposed respects, but we believe this method
and protection of VA ratings, was will assist readers in understanding
on October 1, 2004. See 69 FR 59072.
published as proposed on May 22, 2007 these proposed regulations where no
The portion concerning DIC benefits
(AM01). See 72 FR 28770. part 5 counterpart has yet been
‘‘Subpart D—Dependents and and general provisions relating to proof
of death and service-connected cause of published. If there is no part 3
Survivors’’ would inform readers how counterpart to a proposed part 5
VA determines whether an individual is death was published as proposed on
October 21, 2005. See 70 FR 61326. regulation that has not yet been
a dependent or a survivor of a veteran. published, we have inserted
It would also provide the evidence ‘‘Subpart H—Special and Ancillary
‘‘[regulation that will be published in a
requirements for these determinations. Benefits for Veterans, Dependents, and
future Notice of Proposed Rulemaking]’’
This subpart was published as proposed Survivors’’ would pertain to special and
where the part 5 regulation citation
on September 20, 2006. See 71 FR ancillary benefits available, including
would be placed.
55052. benefits for children with various birth Because of its large size, proposed
‘‘Subpart E—Claims for Service defects. This subpart was published as part 5 will be published in a number of
Connection and Disability proposed on March 9, 2007. See 72 FR NPRMs, such as this one. VA will not
Compensation’’ would define service- 10860. adopt any portion of part 5 as final until
connected compensation, including ‘‘Subpart I—Benefits for Certain all of the NPRMs have been published
direct and secondary service Filipino Veterans and Survivors’’ would for public comment.
connection. This subpart would inform pertain to the various benefits available In connection with this rulemaking,
readers how VA determines entitlement to Filipino veterans and their survivors. VA will accept comments relating to a
to service connection. The subpart This subpart was published as proposed prior rulemaking issued as a part of the
would also contain those provisions on June 30, 2006. See 71 FR 37790. Project, if the matter being commented
governing presumptions related to ‘‘Subpart J—Burial Benefits’’ would on relates to both rulemakings.
service connection, rating principles, pertain to burial allowances.
and effective dates, as well as several ‘‘Subpart K—Matters Affecting the Overview of This Notice of Proposed
special ratings. This subpart will be Receipt of Benefits’’ would contain Rulemaking
published as three separate NPRMs due provisions regarding bars to benefits, This NPRM pertains to payments to
to its size. The first, concerning forfeiture of benefits, and renouncement claimants and beneficiaries who are
presumptions related to service of benefits. This subpart was published eligible for more than one VA benefit or
connection, was published as proposed as proposed on May 31, 2006. See 71 FR one VA benefit in addition to certain
on July 27, 2004. See 69 FR 44614. 31056. benefits from other Federal agencies.
‘‘Subpart F—Nonservice-Connected ‘‘Subpart L—Payments and These regulations would be contained
Disability Pensions and Death Adjustments to Payments’’ would in proposed Subpart L of new 38 CFR
Pensions’’ would include information include general rate-setting rules, part 5. Although these regulations have
regarding the three types of nonservice- several adjustment and resumption been substantially restructured and
connected pension: Improved Pension, regulations, and election-of-benefit rewritten for greater clarity and ease of
Old-Law Pension, and Section 306 rules. Because of its size, subpart L will use, most of the basic concepts
Pension. This subpart would also be published in two separate NPRMs. contained in these proposed regulations
include those provisions that state how The portion of subpart L that concerns are the same as in their existing
to establish entitlement to Improved payments to beneficiaries who are counterparts in 38 CFR part 3. However,
Pension, and the effective dates eligible for more than one benefit is the a few substantive differences are
governing each pension. This subpart subject of this NPRM. proposed, as are some regulations that
do not have counterparts in 38 CFR part Based in whole or in part 3 section in the table, but no
3. Proposed part 5 sec- part on 38 CFR part 3 reference to paragraph (b) of that section
tion or paragraph section or paragraph because paragraph (b) will be addressed
Table Comparing Current Part 3 Rules (or ‘‘New’’) in a separate NPRM. The table also does
With Proposed Part 5 Rules not include provisions from part 3
5.751(a)(2) ................ 3.708(b)(1) [second
The following table shows the sentence] and regulations that will not be carried
relationship between the current 3.958. forward to part 5. Such provisions are
regulations in part 3 and the proposed 5.751(b) ..................... 3.708(b)(2). discussed specifically under the
regulations contained in this NPRM: 5.751(c) ..................... 3.708(b)(1) [second appropriate part 5 heading in this
and third sentences preamble. Readers are invited to
(excluding inter- comment on the proposed part 5
Based in whole or in
Proposed part 5 sec- part on 38 CFR part 3 vening cross ref- provisions and also on our proposals to
tion or paragraph section or paragraph erence)]. omit those part 3 provisions from part
(or ‘‘New’’) 5.751(d) ..................... New.
5.751(e) ..................... 3.708(a)(3) and
5.
5.740—Election ......... 3.701(b). 3.708(b)(1) [last Content of Proposed Regulations
5.740—Initial election New. sentence].
5.740—Reelection ..... New. 5.752 ......................... New. Payments to Beneficiaries Who Are
5.740—Timely filed ... 3.750(b) [third sen- 5.753 ......................... 3.710. Eligible for More Than One Benefit—
tence]. 5.754(a) ..................... New. General Provisions
5.741(a) ..................... 3.155(a), 3.701(b), 5.754(b) and (c) ........ 3.715.
5.754(d) ..................... 3.500(x). 5.740 Definitions Relating to Elections
13.55, 13.57,
13.58, 13.59, and 5.756 ......................... 3.700 [introduction]. Proposed § 5.740 defines four terms
New. 5.757(a) ..................... 3.701(a) [sentences applicable to elections. The first
5.741(b) ..................... 3.155(b), 3.701(b). one and two]. definition is of the term ‘‘election.’’
5.742(a) ..................... 3.702(d)(1) [second 5.757(b) ..................... 3.701(a) [sentences
one and two].
Current § 3.701(b) provides that VA may
sentence] and accept a statement meeting the
3.711 [second sen- 5.757(c) ..................... 3.701(a) and New.
5.757(d) ..................... 3.701(a) [first and requirements of an informal claim as an
tence].
third sentences]. election. The requirements of an
5.742(b) ..................... New.
5.742(c) ..................... 3.702(d)(1) [last sen- 5.757(e)(1) ................ 3.701(a) [first and informal claim are contained in the first
tence] and New. fourth sentences]. two sentences of current § 3.155(a).
5.742(d) and (e) ........ New. 5.757(e)(2) ................ New. They are, essentially, any
5.757(e)(3) ................ 3.701(a) [fifth sen- communication or action from a
5.743(a) ..................... 3.400(j)(1).
tence]. claimant or certain other listed persons
5.743(b) ..................... 3.500(e) [first sen-
5.758(a) ..................... 3.711 [first sentence].
tence], (i), and (x). that indicates an intent to apply for one
5.758(b) ..................... 3.711 [last sentence].
5.745 ......................... 3.401(e) and 3.750.
5.758(c) ..................... 3.960(a).
or more VA benefits and that identifies
5.746(a) ..................... 3.654(a) [second sen- the benefit(s) sought. Additionally,
5.758(d) ..................... 3.701(a) [fifth sen-
tence] and current § 3.1(p) requires that all claims
tence].
3.700(a)(1)(ii). be in writing.
5.759(a)(1)(i) ............. 3.702(a).
5.746(b) ..................... 3.654(a) [first sen- We believe that it would be clearer to
5.759(a)(1)(ii) ............ 3.702(d)(1).
tence] and define an election directly, rather than
5.759(a)(2) ................ 3.702(a).
3.700(a)(1)(i).
5.759(b) ..................... 3.702(c). through a reference to informal claims.
5.746(c) ..................... 3.501(a) and 5.760 ......................... 3.702(d)(2) and New.
3.654(b)(1). We also note that there is an element
5.761 ......................... 3.700(b)(1). inherent in the concept of an ‘‘election’’
5.746(d)(1) ................ 3.654(b)(2) [first sen- 5.762(a), (b) .............. 3.700(b)(2).
tence]. that is not necessarily present in an
5.762(c) ..................... 3.659, 3.703, and
5.746(d)(2)(i) ............. New. informal claim, the element of choice,
3.503(a)(7).
5.746(d)(2)(ii) ............ 3.654(b)(2) [third and 5.763 ......................... 3.704(a). and that in practice VA requires that an
fourth sentences]. 5.764(a) ..................... 3.503(a)(8), 3.659(b), election be signed by a person with
5.746(d)(3) ................ New. 3.703(c), 3.707(a), authority to make the election.
5.746(d)(4) ................ 3.654(b)(2) [second and 21.3023. Considering all of these factors, we
sentence]. 5.764(b), (c), and (d) 3.707 and 21.3023. propose to define an election as ‘‘any
5.746(d)(5) ................ 3.654(b)(2) [last sen- writing, signed by a person authorized
tence]. Readers who use this table to compare by § 5.741, ‘Persons who may make an
5.746(e) ..................... 3.654(c) and
existing regulatory provisions with the election,’ expressing a choice between
3.700(a)(1)(iii).
5.747(a)(1) ................ 3.700(a)(2)(iii) [first
proposed provisions, and who observe a two or more VA benefits to which the
sentence]. substantive difference between them, person is entitled, or between VA and
5.747(a)(2) ................ 3.700(a)(2)(iv). should consult the text that appears other Federal benefits to which the
5.747(b) ..................... 3.700(a)(3). later in this document for an person is entitled.’’ No substantive
5.747(c)(1) ................. 3.700(a)(5)(i) [first explanation of significant changes in change is intended by this definition.
sentence]. each regulation. Not every paragraph of The next two terms that are defined
5.747(c)(2) ................. 3.700(a)(5)(ii). every current part 3 section regarding are ‘‘initial election’’ and ‘‘reelection.’’
5.747(d) ..................... 3.700(a)(2)(iii), (a)(3), the subject matter of this rulemaking is An initial election is the first election
and (a)(5)(i). accounted for in the table. In some that a person authorized by § 5.741
5.748 ......................... 3.753. instances, other portions of the part 3 makes between two or more benefits. A
5.750(a)(1) ................ 3.708(a)(1) and

(a)(4).
sections that are addressed in these reelection is a later, different election
5.750(a)(2) ................ 3.708(a)(2). proposed regulations will appear in between benefits that were the subject of
5.750(a)(3) ................ New. subparts of part 5 that are being an initial election. We note that ‘‘initial
5.750(b) ..................... 3.708(a)(3). published separately for public election’’ and ‘‘reelection’’ are not
5.751(a)(1) ................ 3.708(b)(1) [first sen- comment. For example, a reader might defined in part 3. We think that adding
tence]. find a reference to paragraph (a) of a these definitions in part 5 will prove
very helpful to the reader. The the right to make an election when it the second sentence of § 3.711 (which is
definitions are based on VA’s current receives a communication from a applicable to elections of Improved
election regulations and no substantive Member of Congress or from a claimant Pension). Although § 3.702(d)(1)
change is intended. or beneficiary’s duly authorized concerns DIC elections and § 3.711
The last term defined is ‘‘timely representative. If VA receives an concerns pension elections, it is long-
filed.’’ We propose to state that, with election signed by a person authorized standing VA practice to apply this rule
respect to elections, ‘‘timely filed’’ to do so under § 5.741(a) within 1 year to other elections of benefits. We note
means that a person authorized by of the notice, it will then consider the that § 3.711 refers to an exception to the
§ 5.741 filed an election within 1 year of election to have been filed on the date rule that an election is final upon
VA’s notice that such an election is it received the communication from the negotiation of a check. The exception is
required. This definition is consistent Member of Congress or the found in current § 3.714. We have not
with the definition of a ‘‘timely filed’’ representative. These procedures are included this exception in proposed
election in current § 3.750(b). While that substantively consistent with rules in § 5.742 because § 3.714 is obsolete. VA
definition is in the context of an current § 3.701(b), which permit VA to proposed the removal of § 3.714 in a
election between VA benefits and accept a statement meeting the prior rewrite package (‘‘Elections of
military retirement pay, the definition requirements of an informal claim as an Improved Pension; Old Law and Section
in fact applies to all elections. See 38 election, and in current § 3.155, which 306 Pension,’’ RIN 2900–AL83). See 69
U.S.C. 5103(b), which provides that permits VA to accept an informal claim FR 77578, 77587.
when VA notifies a claimant that from a Member of Congress or The vast majority of VA beneficiaries
information or evidence is necessary to representative subject to confirmation now receive benefits by direct deposit or
substantiate a claim, such information through filing a benefit application electronic funds transfer rather than by
or evidence must be received by VA within 1 year from the date VA sends check. In such cases the rule regarding
within 1 year of the date such notice is the application. The end result would negotiating a check in proposed
sent. be the same under proposed § 5.741(b) § 5.742(a) could not apply. To cover
5.741 Persons Who May Make an as it would be under current part 3 benefits received by direct deposit or
Election rules; however, proposed § 5.471(b) electronic funds transfer, we have
does not use the ‘‘informal claim’’ proposed new § 5.742(b), which states
Proposed § 5.741 describes persons language, which lacks clarity in the
who may make an election. Paragraph that elections by beneficiaries who
context of benefit elections. receive benefits by direct deposit or
(a) lists persons who are authorized to
sign an election. They include a 5.742 Finality of Elections; electronic funds transfer are final when
claimant, a beneficiary, or a person Cancellation of Certain Elections the applicable financial institution
authorized to act on behalf of a claimant Proposed § 5.742 states rules for receives the second payment of the
or beneficiary. This list is based in part determining when an election is ‘‘final.’’ elected benefit. This is consistent with
on current § 3.155(a) and § 3.701(b) and As explained in the introductory long-standing VA practice. The
in part on long-standing VA practice. paragraph of proposed § 5.742, this reasoning is that a deposit in the
We have listed a beneficiary as a person section explains that a final election or beneficiary’s account serves as notice
authorized to sign an election, which is reelection ordinarily may be changed that the elected benefits are being paid,
consistent with long-standing VA only by cancellation under paragraph just as receipt of a check is notice that
practice. We have also listed persons (d) or (e) of this section or by reelection, the elected benefits are being paid.
who are authorized to act on behalf of if authorized. The introductory Proposed § 5.742(c) provides a general
a claimant or beneficiary according to paragraph also explains that other rule that an election is final if the payee
the requirements of certain VA provisions of this part specify when dies before negotiating a check or before
regulations in part 13 of title 38 CFR, reelection is authorized and when a receiving a second payment by direct
regarding fiduciaries. This is consistent final election or reelection is deposit or electronic funds transfer. It is
with long-standing VA practice, and no irrevocable. derived from the more specific
substantive change is intended. Provisions similar to proposed provision contained in the last sentence
Paragraph (b) of proposed § 5.741 is § 5.742(a), (b), (d), and (e) were of § 3.702(d)(1), which states that an
also based on current § 3.155(a), which previously published as part of another election of DIC is final even if the payee
states that Members of Congress or a part 5 NPRM, ‘‘Elections of Improved dies before negotiating a check. This
claimant or beneficiary’s duly Pension; Old-Law Pension and Section expansion of the rule from § 3.702(d)(1)
authorized representative are able to file 306 Pension,’’ which was published as is consistent with long-standing VA
an informal claim. They are, therefore, proposed on December 27, 2004, 69 FR practice and allows for the orderly and
able to communicate a claimant’s or 77578. These provisions were contained consistent administration of payments
beneficiary’s intent to elect a particular in proposed § 5.461(b). We now propose to the estates of deceased beneficiaries.
benefit, as per § 3.701(b). However, to remove that regulation (§ 5.461) and In proposed § 5.742(c), we have also
consistent with long-standing VA address these concepts in this NPRM in added a provision addressing direct
practice, they are not able to sign an proposed §§ 5.742 and 5.758 instead. deposit and electronic funds transfer,
election. Further, as stated in § 3.155(b), This will help achieve consolidation of which we have added to be consistent
a communication from certain benefit election rules in this NPRM. with proposed § 5.742(b).
representatives, namely a service Proposed § 5.742(a) states that an Proposed § 5.742(d) states that if VA
organization, an attorney, or an agent, election is final when a beneficiary (or determines that a beneficiary was
may not be accepted unless a power of someone authorized to act for the incompetent when he or she elected a
attorney existed at the time the beneficiary under § 5.741) has benefit, the election can be canceled.
communication was written. negotiated a check for the elected This is consistent with long-standing
In keeping with long-standing VA benefit. This is based on the last VA practice and helps ensure that
practice, paragraph (b) of proposed sentence of § 3.702(d)(1) (which is incompetent beneficiaries receive all the
§ 5.741 states that VA will provide applicable to elections of dependency benefits to which they are entitled
notice to the claimant or beneficiary of and indemnity compensation (DIC)) and under the law.
Proposed § 5.742(e) states that a Section 3.400(j)(1) covers situations Proposed § 5.746(b) states the general
beneficiary can cancel an election if he where a beneficiary elects a different rule that VA will not pay disability
or she made the election based on benefit. It does not address situations compensation or pension for any period
erroneous information that was where a claim is pending and an in which the veteran received active
provided by VA. However, VA must election is timely filed under § 5.740(d). military service pay. It is based on
determine that the information was In such cases, VA’s long-standing § 3.700(a)(1)(i) and the first sentence of
erroneous based on the same evidence practice has been to assign an effective § 3.654(a). However, we have not
of record used previously to provide the date that is the same as the effective date included the reference to ‘‘retirement
erroneous information. One example of VA would assign for the awarded pay’’ found in current §§ 3.654(a) and
this rule’s application would be if VA benefit if no election were required. We 3.700(a)(1)(i), since VA does not
mistakenly informed a claimant or have added such language to § 5.743(a) administer any veteran’s benefit titled
beneficiary that he or she would be to address such situations. ‘‘retirement pay.’’ VA previously paid
entitled to a higher rate if a particular Paragraph (b) provides the effective emergency officers’ retirement pay
benefit were elected and then later date for reduction or discontinuance (EOR), which is no longer a viable
determines that this was not the case when VA reduces or discontinues a benefit. Therefore, references to EOR
(based on the same evidence of record benefit because another benefit is would not be carried forward to new
at the time that VA mistakenly informed elected. It is based on current § 3.500(e) part 5. Although military retirement pay
the claimant or beneficiary of his or her (first sentence), pertaining to Federal may also be discontinued when a
entitlement to a higher rate). This is employees’ compensation, § 3.500(i), veteran returns to active duty, VA does
consistent with long-standing VA pertaining to elections in general, and not administer that benefit.
practice and helps ensure that § 3.500(x), pertaining to the Radiation Proposed § 5.746(c) states the effective
beneficiaries are not unfairly deprived Exposure Compensation Act of 1990. date of discontinuance of payments for
of VA benefits. We have consolidated these three VA benefits during active duty status. It
Note that when provisions similar to effective date provisions in proposed is based on current §§ 3.501(a) and
§ 5.742(d) and (e) were previously § 5.743(b). We note that part 3 3.654(b)(1). We propose to state that VA
proposed as § 5.461(b)(2) and (3), they regulations provide effective dates for will discontinue payments ‘‘effective
provided that a request to cancel the reductions and discontinuances of VA the day the veteran begins active duty
election must be received within 1 year benefits in terms of the last date of service.’’ This is consistent with our
from the date that the election had entitlement to payment at the previous proposal throughout the Rewrite Project
become effective. Following internal rate. We believe that it is clearer to state to state effective dates for
reconsideration of this provision, we that the effective date for a reduction or discontinuances as the actual day
have determined that this limitation discontinuance is the first day of payment stops, rather than the last day
might be overly narrow in some cases. payment of the new reduced rate or ‘‘no- benefits are paid.
Therefore, proposed § 5.742(d) and (e) pay date,’’ rather than as the last day of Title 10 U.S.C. 12316 gives veterans
contain no such limitation. who return to active duty the right to
the old rate. This approach is consistent
continue to receive VA compensation or
5.743 General Effective Dates for throughout the rewrite project. We have
pension rather than active duty pay.
Awarding, Reducing, or Discontinuing taken that approach in proposed
This principle is not stated in current
VA Benefits Because of an Election paragraph (b).
§ 3.654 but we believe it is important for
Proposed § 5.743(a) is based on Payments From Service Departments veterans to be aware of this right.
current § 3.400(j)(1), which states the and the Effects of Those Payments on Accordingly, we have included this
general effective date rule for elections. VA Benefits for Veterans information in proposed § 5.746(c).
(Other part 5 provisions may contain Proposed § 5.746(d) concerns the
specific additional effective date rules.) 5.745 Entitlement to Concurrent resumption of payments for VA benefits
Under current § 3.400(j)(1), unless Receipt of Military Retired Pay and VA after release from active duty. It is based
otherwise provided, the effective date of Disability Compensation on current § 3.654(b)(2). Current
an award of elected VA benefits is ‘‘the Proposed § 5.745 pertains to the § 3.654(b)(2) provides that
date of receipt of election, subject to concurrent receipt of military retirement compensation will be authorized based
prior payments.’’ The effective date is pay and VA disability compensation. It on the degree of disability found to exist
‘‘subject to prior payments’’ in order to closely follows the language of current at the time the award is resumed, and
avoid impermissible concurrent § 3.750, which was recently amended. that the disability will be evaluated on
payment of benefits which a beneficiary No substantive changes are proposed. the basis of all facts, including records
cannot lawfully receive for the same Section 3.401(e) contains the effective from the service department relating to
time period. This could potentially date rules for elections between military the most recent period of active service.
occur when a person receiving Benefit retirement pay and VA disability The practical consequence of this is that
A elects to receive Benefit B instead, compensation. We have incorporated while the effective date for the
and the award of Benefit B is retroactive these provisions into § 5.745(e). No resumption of payments can be as early
for some period of time. Because Benefit substantive change is intended. as the day following release from active
A and Benefit B cannot be received for duty, the award that will generate those
the same time period, VA would offset 5.746 Prohibition Against Receipt of
payments can be delayed while VA
the payments already issued for Benefit Active Military Service Pay and VA
evaluates the degree of current
A against the amount payable for Benefits for the Same Period
disability.
Benefit B. Proposed paragraph (a)(2) Proposed § 5.746(a) defines active In some cases, however, it might be
provides for this offset. The reader military service pay. It is based on clear from the record that the degree of
should note that no substantive change current § 3.654(a) and § 3.700(a)(1)(ii). impairment resulting from a service-
is intended in paragraph (a)(2). The We propose to state ‘‘active military connected disability had already
offset is provided for in current service pay’’ rather than ‘‘active service become ‘‘static’’ when the veteran
§ 3.400(j)(1), and proposed § 5.743(a)(2) pay’’ for clarity. No substantive change returned to active duty. A ‘‘static’’
merely explains it in more detail. is intended. disability is one that has stabilized and
is unlikely to either progress or which explains how VA classifies Although the savings provision allows
improve. For example, the impairment Reserve and National Guard duty. (The personnel who were on active duty on
resulting from an injury may remain text of proposed § 5.23 may be found at September 14, 1981, to be awarded
permanently the same after the injury 69 FR 4833.) We have also clarified that nondisability severance pay, it is highly
has fully healed. In the case of such while VA does continue to accept unlikely that it would still be awarded,
static service-connected disabilities, the prospective waivers, each waiver is since, due to the passage of time, such
processing of resumed payments need good for not more than 1 year. In most personnel would now be eligible for
not be delayed to reassess current cases, VA generates annual waiver retirement benefits. The purpose of
impairment because impairment is not forms to send to veterans based upon nondisability severance pay was to
expected to change. training duty data provided by the provide for service members who were
Accordingly, we propose to provide Department of Defense. involuntarily separated from the
in proposed § 5.746(d)(2)(i) that VA will military prior to eligibility for
resume payments for service-connected 5.747 Effect of Military Readjustment
retirement benefits. Now that these
disabilities at the same disability level Pay, Disability Severance Pay, and
personnel would more than likely be
that was in effect immediately prior to Separation Pay on VA Benefits
eligible for retirement benefits, we
entering active duty if the evidence of Proposed § 5.747 is derived from believe a regulation pertaining to
record shows that the level of disability current § 3.700(a)(2) through (5). We nondisability severance pay is no longer
was static at the time of entry. This propose not to repeat current necessary.
proposed provision is consistent with § 3.700(a)(2)(i) and (ii), concerning We note that § 3.700(a)(3) indicates
long-standing VA practice and prevents readjustment pay under former 10 that VA will recoup the total amount of
unnecessary delays in resuming VA U.S.C. 687 and 3814, because they are disability severance pay from an award
disability compensation payments for no longer necessary. These sections of of VA compensation when entitlement
veterans returning from military service title 10, United States Code, were to VA compensation was established on
where the degree of impairment for a repealed by §§ 109(a) and 214 of the or after September 15, 1981, even if the
service-connected disability is already Defense Officer Personnel Management award for VA compensation is not for
known. This would not preclude the Act (the Act) in 1980. Public Law 96– the same disability for which disability
veteran from requesting an increase if he 513, 94 Stat. 2835, 2870 and 2885. The severance pay was granted. While this
or she believed the disability had repeal was effective September 15, 1981. may be true for recoupment of
worsened. As provided in proposed Public Law 96–513, section 701(a), 94 nondisability severance pay, this
§ 5.746(d)(2)(ii), other disabilities Stat. 2955. proposed rule would explain that it is
(which may have gotten better or worse Although a savings provision was not true for disability severance pay.
during the period of active duty) would included in the Act, which allows Under 10 U.S.C. 1212(c), VA must only
continue to be evaluated before resumed persons who were on active duty on recoup disability severance pay from
payments are awarded. September 14, 1981, and were VA compensation when the VA
Proposed new § 5.746(d)(3) clarifies subsequently involuntarily separated compensation is for the same disability
how the provisions of current § 3.31, from service, to elect payment under for which disability severance pay was
concerning delayed beginning dates for repealed 10 U.S.C. 687 and 3814, it is granted.
certain VA benefit payments, applies to unlikely that there are still any eligible The current regulation reflects an
payments resumed under § 5.746(d). recipients. Therefore it is unlikely that ambiguity existing between two statutes.
With one exception, § 3.31 does not the application of § 3.700(a)(2)(i) and (ii) Section 1212(c) permits VA to recoup
apply because its application is limited would be required under proposed new disability severance pay from VA
to ‘‘original, reopened, or increased part 5. Should that be necessary in a compensation when the VA
awards’’ and does not apply to awards specific case, VA may always proceed compensation is for the same disability
that ‘‘provide only for continuity of under the applicable statutes. for which disability severance pay was
entitlement with no increase in rate of Proposed § 5.747(a) pertains to lump- granted. However, 10 U.S.C. 1174(h)(2)
payment.’’ See § 3.31(b). The exception sum readjustment pay. Paragraph (a)(1) states more broadly that if a veteran
is that § 3.31 does apply to the portion of proposed § 5.747 repeats nearly received separation pay, severance pay,
of the payment that represents the verbatim the first sentence of current or readjustment pay under any
amount of the increase if the disability § 3.700(a)(2)(iii). It describes the provision of law based on service in the
evaluation is increased. recoupment of lump-sum readjustment armed forces, VA must deduct the ‘‘total
Members of the Reserves and National from VA compensation. Paragraph (a)(2) amount’’ of such payment from VA
Guard cannot receive both training pay is derived from 3.700(a)(2)(iv), and disability compensation payments to the
and VA compensation or pension describes the prohibition against veteran. The current provision in
payments at the same time. However, recoupment of lump-sum readjustment section 3.700(a)(3) may suggest the view
they may waive their VA benefits in pay from VA compensation awarded for that the general rule stated in section
order to receive their training pay, a subsequent period of service. 1174(h)(2) supersedes the more specific,
which may be a greater amount. Proposed § 5.747(b) is derived from but earlier-enacted rule in section
Proposed § 5.746(e) combines and current § 3.700(a)(3) and restates the 1212(c). However, the Supreme Court
updates the rules relating to waiver of conditions under which VA will recoup has stated that ‘‘it is a commonplace of
VA benefits while on training duty that disability severance pay from a statutory construction that the specific
are located in current §§ 3.654(c) and subsequent award of VA disability governs the general.’’ Morales v. TWA,
3.700(a)(1)(iii). We have omitted a now compensation. We have not included 504 U.S. 374, 384 (1992). Further,
obsolete reference to ‘‘retirement pay’’ provisions regarding nondisability section 1161 of title 38, United States
for the reasons noted above. We have severance pay because it is highly Code, which governs VA disability
clarified that the waivers apply to pay unlikely that there will be any compensation awards, continues to refer
received by Reservists and National remaining eligible recipients. to 10 U.S.C. 1212(c), rather than 10
Guard members for active duty for Nondisability severance pay was U.S.C. 1174(h)(2), as the statute
training or inactive duty for training and authorized under former 10 U.S.C. 8786, governing payment of disability
included a cross reference to § 5.23, which was repealed by the Act in 1980. compensation in cases involving
disability severance pay. Accordingly, 5.748 Concurrent Receipt of VA of VA disability compensation for a
the provision in this proposed rule that Disability Compensation and Retirement particular disability, and the veteran
VA will recoup disability severance pay Pay by Certain Officers of the Public subsequently is awarded increased VA
from VA disability compensation only Health Service compensation based on a subsequent
where both awards involve the same Proposed § 5.748 is based on current increased impairment of that disability,
disability more accurately reflects the § 3.753 with no substantive change. We the veteran may elect to receive FECA
requirements of the governing statutes. have added authority citations. compensation or VA compensation as to
For the reasons stated above, provisions that additional disability. The basis for
Payments From Federal Agencies and this policy is that the increase in
regarding nondisability severance pay the Effects of Those Payments on VA
are no longer necessary and are not payment is considered a new award that
Benefits for Veterans and Survivors is subject to an initial election.
included in proposed § 5.747. Paragraph (b) of proposed § 5.750 is
5.750 Election Between VA Benefits
Proposed § 5.747(c) pertains to based on current § 3.708(a)(3), and
and Compensation Under the Federal
recoupment of separation pay and Employees’ Compensation Act for Death involves the effect of a surviving
special separation benefits. Paragraph or Disability Due to Military Service spouse’s election of FECA compensation
(c)(1) of proposed § 5.747 repeats nearly or VA benefits on the rights of children.
verbatim the first sentence of current Proposed § 5.750 is based on current We have divided the provisions of
§ 3.700(a)(5)(i). It describes the § 3.708(a), pertaining to benefits payable current § 3.708(a)(3) into proposed
under the Federal Employees’ § 5.750(b)(1) and (b)(2). Proposed
recoupment of separation pay from VA
Compensation Act (FECA), based on § 5.750(b)(1) addresses situations where
compensation. Paragraph (c)(2) of
service in the U.S. Armed Forces before the rights of the child are controlled by
proposed § 5.747 is derived from current January 1, 1957. (FECA compensation is
§ 3.700(a)(5)(ii), and describes the the surviving spouse. Proposed
also payable based on Federal civilian § 5.750(b)(2) addresses situations where
prohibition against recoupment of employment, which is the subject of the rights of the child are independent
separation pay from VA compensation proposed § 5.751.) Paragraph (a)(1) of of the surviving spouse.
awarded for a subsequent period of proposed § 5.750 is based on current We have added an authority citation
service. § 3.708(a)(1) and (a)(4). Current at the end of proposed § 5.750, which
Proposed § 5.747(d) states the amount § 3.708(a)(1) is entitled ‘‘initial includes section 8116(b) of title 5,
VA must recoup from VA disability election.’’ We have changed this to United States Code, which is the statute
compensation for lump-sum ‘‘election required,’’ because ‘‘initial governing elections between VA
readjustment pay, disability severance election’’ might imply that a reelection benefits and FECA compensation,
pay, separation pay, or special is possible. Under 5 U.S.C. 8116(b), section 501(a) of title 38, United States
separation benefits paid to veterans however, an election between VA Code, which is the statute authorizing
upon their separation from service. It benefits and FECA compensation the Secretary of VA to prescribe
generally is irrevocable and thus is not regulations that are necessary or
consolidates portions of current
subject to a subsequent reelection (with appropriate to carry out the laws
§§ 3.700(a)(2)(iii), (a)(3), and (a)(5)(i).
an exception noted in proposed administered by VA, and section
There is one change concerning the § 5.750(a)(2)). Thus, the title has been 1316(b) of title 38, United States Code,
amount of special separation benefits changed to ‘‘election required.’’ In which is the statute pertaining to
awarded under 10 U.S.C. 1174a that VA addition, we have added a provision elections between DIC and FECA
must recoup. Current § 3.700(a)(5) indicating that an election between VA compensation.
provides, in part, that VA will recoup benefits and FECA compensation is
the full amount of special separation irrevocable, aside from the exception 5.751 Election Between VA Benefits
benefits paid on or before September 30, provided for in proposed § 5.750(a)(2). and Compensation Under the Federal
1996, but will reduce the amount We believe that providing this Employees’ Compensation Act for Death
clarification will be helpful to the or Disability Due to Federal Civilian
recouped by the amount of Federal
reader. No substantive change is Employment
income tax withheld from special
separation benefits paid after September intended. Proposed § 5.751 is based primarily
30, 1996. That was accurate at the time Paragraph (a)(2) of proposed § 5.750 is on current §§ 3.708(b) and 3.958,
that § 3.700(a)(5) was drafted. However, based on current § 3.708(a)(2). We have regarding FECA compensation for death
section 8208 of the Transportation changed the heading from ‘‘right of or disability due to Federal civilian
reelection’’ to ‘‘right to elect DIC in lieu employment. However, paragraph (d) of
Equity Act for the 21st Century, Public
of FECA compensation at any time.’’ We proposed § 5.751 is new.
Law 105–178, 112 Stat. 107, 495 (1998),
believe the heading ‘‘right of reelection’’ Proposed § 5.751(a)(1) is based on
extended the provision allowing the is too broad, and may imply that any current § 3.708(b)(1), and states the
deduction of Federal income tax election involving FECA compensation requirement that an individual must
withholding back to December 5, 1991, is subject to reelection. As noted above, make an election between FECA
the date that section 1174a was added this is not the case. We believe the new, compensation and VA disability
to title 10, United States Code. Public more specific heading, is more accurate compensation or dependency and
Law 102–190, section 661(a)(1), 105 and more helpful to the reader. No indemnity compensation (DIC) if both
Stat. 1290, 1394 (1991). Thus, the substantive change is intended. The FECA compensation and VA benefits
deduction of Federal income tax basis for allowing a one-time election of are awarded based on the same
withheld from the amount VA must DIC is the statutory provision under 38 disability or death.
recoup applies to all 10 U.S.C. 1174a U.S.C. 1316, which prohibits any return Proposed § 5.751(a)(2) is based on
special separation benefits. Proposed to FECA compensation once DIC has current §§ 3.708(b)(1) and 3.958. It states
§ 5.747(d)(2) reflects this change. been granted. that an individual may receive FECA
Paragraph (a)(3) of proposed § 5.750 compensation and VA benefits at the
provides that if a veteran makes an same time if there was an award prior
election of FECA compensation instead to September 13, 1960, approving such
receipt. In such cases, an election 5.752 Procedures for Elections Paragraph (a) of proposed § 5.756 is
between FECA compensation and VA Between VA Benefits and Compensation based on the first sentence of current
benefits is not required. Under the Federal Employees’ § 3.700. We note that this sentence
Proposed § 5.751(b) is based on Compensation Act refers to veterans, because it states that
current § 3.708(b)(2) and states that This is a new regulation which sets not more than one award will be paid
there is no prohibition against out the special election procedures that to any person ‘‘based on his or her own
concurrent payment of FECA apply to elections between VA benefits service.’’ Although the first sentence of
compensation and VA compensation if and compensation under the Federal current § 3.700 refers to
entitlement to each benefit is based on Employees’ Compensation Act (FECA). ‘‘compensation,’’ we have specified in
a different disability or death. An Unlike other elections involving VA proposed § 5.756 that this is ‘‘disability
election between FECA compensation benefits, an election between VA compensation.’’
and VA benefits is not required in such benefits and FECA compensation is Paragraph (b) of proposed § 5.756 is
cases. made with the U.S. Department of based on the second sentence of current
Proposed § 5.751(c) is based on Labor’s Office of Workers’ § 3.700. Although § 3.700 refers to
current § 3.708(b)(1) and states that a Compensation Programs (OWCP), not ‘‘dependents,’’ proposed § 5.756(b)
Federal civilian employee’s election with VA. The procedures described in refers to ‘‘survivors,’’ which is the term
between FECA compensation and VA proposed § 5.752 are based on long- used throughout Part 5 to refer to
benefits for the same disability is standing VA practice; no substantive persons who may receive benefits based
irrevocable, with the exception of the change to these procedures is intended. on the death of a veteran. Dependents of
situation addressed in paragraph (d) of a VA beneficiary are not entitled to
proposed § 5.751. 5.753 Payment of VA Benefits and compensation, pension, or DIC in their
Paragraph (d) of proposed § 5.751, Civil Service Retirement Benefits for the own right, and the prohibition on
which is similar to paragraph (a)(3) of Same Period payment of multiple benefits therefore
proposed § 5.750, provides for the Proposed § 5.753 is a restatement of is not applicable to dependents. We
situation where a veteran has elected current § 3.710 without substantive note that dependents may receive
FECA compensation, but later there is change. apportionments of amounts otherwise
an increase in the disability which payable to VA beneficiaries. In such
5.754 Effect of Payment of
would warrant an increase in VA cases, however, the prohibition on
Compensation Under the Radiation
compensation. The veteran may elect multiple benefits and the rights of
Exposure Compensation Act of 1990 on
between FECA compensation and VA election apply to the beneficiary, rather
Payment of Certain VA Benefits
compensation as to that additional than the apportionee, except where a
disability. The basis for this policy is Proposed § 5.754 is based on current statute or regulation expressly provides
that the increase in payment is § 3.715, which was recently amended, otherwise (see proposed § 5.757(e)(3)).
considered a new award that is subject pertaining to the concurrent receipt of Additionally, although the second
to an initial election. Radiation Exposure Compensation Act sentence of current § 3.700 refers to
Paragraph (e)(2) of proposed § 5.751 is of 1990 (RECA) compensation and VA ‘‘compensation,’’ we have specified that
based on current § 3.708(b)(1) and states benefits. In addition, we have added this is ‘‘death compensation.’’ This is
that a child who is eligible for DIC or paragraph (d), which is based on current not a substantive change, because the
other VA benefits independent of a § 3.500(x), regarding the effective date of current rule has no application to
surviving spouse may receive those discontinuance or reduction of VA awards of disability compensation, a
benefits concurrently with the payment benefits due to receipt of RECA benefit awarded only to living veterans.
of FECA compensation to the surviving compensation. In keeping with the The reader should see the discussion in
spouse. We have added paragraph (e)(1) practice used throughout proposed part the preamble regarding proposed § 5.757
to address a situation where the 5, we have reframed this discontinuance for a further explanation of the effort to
surviving spouse’s election controls the effective date rule in terms of the first be more specific when referring to
rights of a child. This is the same day that benefits are not paid rather compensation.
provision as found in current than in terms of the last day benefits are Although the introduction to § 3.700
§ 3.708(a)(3) and proposed § 5.750(b)(1), paid. In addition, we have changed the includes references to other benefits,
which apply to elections involving cite to current § 3.309(d), which appears including emergency officers’, regular or
FECA compensation based on disability in current § 3.715, to § 5.268, ‘‘Service reserve retirement pay, and naval
or death due to military service. The connection for diseases presumed to be pension, these references have not been
provision equally applies to elections due to exposure to ionizing radiation,’’ repeated in proposed § 5.756, for the
involving FECA compensation based on which was published as proposed on following reasons. Regarding emergency
a disability or death due to civilian July 27, 2004. See 69 FR 44614. officers’ retirement pay, we note that
employment, so we have included it in Rules Concerning the Receipt of there are no longer any veterans
proposed § 5.751(e)(1). Multiple VA Benefits receiving this benefit. Therefore, there
We have added an authority citation are no regulations pertaining to this
at the end of proposed § 5.751, which 5.756 Prohibition Against Concurrent benefit that will be included in
includes section 8116(b) of title 5, Receipt of Certain VA Benefits Based on proposed part 5. Regarding military
United States Code, which is the statute the Sservice of the Same Veteran retirement pay, we plan to specifically
governing elections between VA Proposed § 5.756 is based on portions address the concurrent receipt of
benefits and FECA compensation, and of the introduction to § 3.700 that relate military retirement pay and VA benefits
section 501(a) of title 38, United States to disability and death compensation, in another regulation, § 5.745. Regarding
Code, which is the statute authorizing dependency and indemnity naval pension, we note that the
the Secretary of VA to prescribe compensation (DIC), and pension concurrent receipt of naval pension and
regulations which are necessary or benefits. The text has been simplified VA benefits will be addressed in subpart
appropriate to carry out the laws and restructured for clarity. No H of proposed part 5 in a separate
administered by VA. substantive changes are intended. NPRM.
5.757 Elections Between VA Disability compensation’’), in contrast, proposed § 5.757(e)(2), see 70 FR #####,
or Death Compensation and Pension incorporates terms of former 38 CFR #####.
Paragraphs (a) and (b) of proposed 4.424, et seq. (1958), which Paragraph (e)(3) of proposed § 5.757
§ 5.757(a) are based on portions of the implemented the DIC program. See contains another exception to the
first two sentences of current § 3.701(a). Transmittal Sheet 200 (May 29, 1959). general rule stated in paragraph (e)(1). It
Also noted in the Opinion, § 3.701(a) is based on the fifth sentence of current
The first sentence of current § 3.701(a)
permits reelection of the other benefit at § 3.701(a)(1), which states that the
states that, except as otherwise
any time, while § 3.702(d) states that an election of Improved Pension by a
provided, a person entitled to receive
election to receive DIC is final and the surviving spouse shall not prejudice the
pension or compensation under more
claimant may not thereafter reelect rights of any child receiving an
than one law or section of a law
death pension or compensation. apportionment on December 31, 1978. It
administered by VA may elect to receive
In addition to clarification of the term has been slightly reworded for the sake
either benefit, regardless of whether it is
‘‘compensation,’’ we have also clarified of clarity, and we have added the terms
the greater or lesser benefit, even though
the term ‘‘pension,’’ which can refer to Old-Law pension and Section 306
the election reduces the benefits payable
Improved Pension, Old-Law Pension, Pension to describe the apportionment.
to his or her dependents. The second Section 306 Pension, or Improved Death No substantive change is intended.
sentence of current § 3.701(a) states that Pension, depending on the context. In We note that we have not included
such person may at any time elect or paragraphs (a) and (b) of proposed the last two sentences of current
reelect the other benefit. These two § 5.757, we specifically state that the § 3.701(a) in proposed § 5.757 because
sentences of current § 3.701(a) have option to freely elect or reelect between they are redundant of current § 3.960(d).
been slightly reworded and reorganized disability and death compensation and They state that termination of the
into paragraph (a) of proposed § 5.757, pension applies to elections and marriage of a surviving spouse who lost
pertaining to elections between reelections involving Improved Pension eligibility for Section 306 or Old-Law
disability compensation and pension, or Improved Death Pension. We have set Pension because of that marriage does
and paragraph (b) of proposed § 5.757, out the election rules pertaining to Old- not restore eligibility for that pension.
pertaining to elections between death Law Pension and Section 306 Pension Regulations pertaining to the Section
compensation and pension. We have not in a separate paragraph, which is 306 Pension and Old-Law Pension
included the provisions regarding the paragraph (c) of proposed § 5.757. programs are addressed in a separate
effect of an election on dependents and Paragraph (d) of proposed § 5.757 NPRM. This includes a proposed
survivors in these new paragraphs, pertains to the effect of a veteran’s regulation addressing the provisions of
however. Instead, we have included election on the rights of dependents. It current § 3.960(d). See proposed § 5.470,
them in paragraphs (d) and (e)(1) of is based on the third sentence of current ‘‘Reasons for Discontinuing or Reducing
proposed § 5.757. These paragraphs, as § 3.701(a), which states that an election Section 306 or Old-Law Pension,’’ 69 FR
discussed below, deal exclusively with by a veteran controls the rights of all 77578, 77589.
the effect of an election on a dependent dependents in that case. We have also Paragraph (f) of proposed § 5.757 is a
or survivor. included the provision from the first restatement of current § 3.701(c). In
There are several matters that we seek sentence of current § 3.701(a), which general, it states that when a person
to clarify in proposed § 5.757. First, we states that an election may result in a who is receiving VA pension or
note that some current part 3 regulations reduction of the benefits payable to a compensation is entitled to a higher rate
are not specific about what is included dependent. under another law (that is, another VA
when the term ‘‘compensation’’ is used. Paragraph (e)(1) of proposed § 5.757 compensation or pension program), VA
This could lead to misinterpretation. pertains to the effect of a surviving will not pay that person under the other
Therefore, we are attempting to be more spouse’s election on the rights of a law unless that person makes an
specific in part 5. When current § 3.701 child. It is based on the fourth sentence election.
refers to ‘‘compensation,’’ it is referring of current § 3.701(a), which states that
to disability or death compensation and an election by a surviving spouse 5.758 Electing Improved Pension
not dependency and indemnity controls the claims of all children Instead of Old-Law Pension or Section
compensation (DIC). In that regard, we including children over 18 and children 306 Pension
adopt the analysis included in not in the custody of the surviving A version of proposed § 5.758 was
paragraph 8 of VA General Counsel spouse. We have also included a previously published as part of another
Opinion VAOPGCPREC 4–92, which provision stating that the election may part 5 NPRM, ‘‘Elections of Improved
states that it is clear not only from the result in a reduction of the benefits Pension; Old-Law Pension and Section
context of section 3.701, but from its payable to a child. This is based on the 306 Pension,’’ which was published on
history that the term ‘‘compensation’’ provision from the first sentence of December 27, 2004, at 69 FR 77578. The
used in that section refers only to current § 3.701(a), which states that a regulation was proposed § 5.461,
disability and death compensation, not person’s election may result in a ‘‘Electing Improved Pension Instead of
DIC. The Opinion goes on to state that reduction of the benefits payable to a Old-Law or Section 306 Pension.’’ We
other provisions dealing with dependent. now propose to remove that regulation
concurrent payments and elections use Paragraph (e)(2) of proposed § 5.757 (§ 5.461) and place it in this NPRM as
the term DIC when reference to that contains an exception to the general rule proposed § 5.758 instead. This will help
benefit is intended. See 38 CFR 3.700 stated in paragraph (e)(1). This achieve consolidation of benefit election
and 3.703 through 3.709. exception is not contained in current rules in this NPRM.
Further, the Opinion states that § 3.701. It is based on 38 U.S.C. 1542, Proposed § 5.758(a), (b), and (c) are
§ 3.701 was primarily derived from which states that children who are not the same as previously proposed
former 38 CFR 4.52 (1956), which in the custody of a surviving spouse § 5.461(a), (c), and (d), respectively,
predated establishment of the DIC have independent eligibility for with minor editorial changes. Readers
program. See Transmittal Sheet 200 Improved Death Pension. For the text of should refer to the remarks at 69 FR
(May 29, 1959). Section 3.702 proposed § 5.417 (corresponding to 77578, 77580–81 for comments
(‘‘Dependency and indemnity current § 3.57(d)), referenced in concerning those paragraphs.
Previously proposed § 5.461(a) states Paragraph (b) of proposed § 5.759 is 5.761 Concurrent Receipt of Disability
the basic rule that, subject to certain based on current § 3.702(c), which states Compensation, Pension, or Death
exceptions, ‘‘a pension beneficiary who that a claim for DIC may not be filed or Benefits by a Surviving Spouse Based
was entitled to receive Old-Law Pension withdrawn after the death of the on the Service of More Than One
or Section 306 Pension on December 31, surviving spouse, child, or parent. Veteran
1978, may instead elect (choose) to Paragraphs (a), (b), and (c)(1) of
We propose not to carry forward
receive Improved Pension.’’ It is restated proposed § 5.761, concerning the
paragraphs (b), (e), and (f) of current
in proposed § 5.758(a), and is based on payment of multiple VA benefits to a
current § 3.711. § 3.702 because they are obsolete.
Current paragraph (b) pertains only to surviving spouse, are based on the first
Previously proposed § 5.461(c) states sentence of current § 3.700(b)(1), which
that if a veteran’s spouse is also a surviving spouses receiving death
compensation, the amount of which is provides that a surviving spouse’s
veteran eligible to elect Improved receipt of death pension, death
Pension, neither veteran may receive based in part on the existence of a child
who has attained the age of 18 years. compensation, or dependency and
Improved Pension unless both elect to indemnity compensation (DIC) as the
receive it. It is restated in proposed Such a situation is highly unlikely,
survivor of one veteran, or receipt of
§ 5.758(b), and is based on current since death compensation is only
pension or disability compensation in
§ 3.711. awarded for deaths occurring before
his or her own right as a veteran, does
Previously proposed § 5.461(d) states January 1, 1957. It is highly unlikely
not bar the payment of death pension,
that if a beneficiary does not elect that a surviving spouse of a veteran who death compensation, DIC, or an
Improved Pension, VA will continue to died before January 1, 1957, would have apportionment of compensation or
pay that beneficiary Old-Law Pension or a dependent child. pension to that surviving spouse
Section 306 Pension at the monthly rate Paragraph (e) of current § 3.702 because of the death or disability of a
in effect on December 31, 1978, unless provides for a surviving spouse to elect different veteran.
that rate must be reduced or death compensation if he or she Current § 3.700(b)(1) includes a
discontinued under proposed § 5.470 or becomes eligible, even though DIC has reference to current § 3.700(a)(4). The
another regulation in this part. It is been paid to a child or children of the proposed part 5 equivalent of
restated in proposed § 5.758(c), and is § 3.700(a)(4) is § 5.464, ‘‘Multiple
veteran. This provision is no longer
based on current § 3.960(a). For the text pension awards not payable.’’ Therefore
necessary, as it is highly unlikely that a
of § 5.470, cited in proposed § 5.758(c), we reference § 5.464 instead of
surviving spouse would choose to
see 69 FR 77578, 77589. § 3.700(a)(4) in proposed § 5.761. For
receive death compensation instead of
Previously proposed § 5.461(b) the text of proposed § 5.464, see 69 FR
contains rules concerning the finality of DIC, because the rate of DIC is higher
than the rate of death compensation. 77578, 77589.
elections. These provisions are now Proposed § 5.761(c)(2) is based on the
contained in proposed § 5.742. Paragraph (f) of current § 3.702 is also second, third, and fourth sentences of
The last provision of proposed obsolete. It attempted to ensure that, § 3.700(b)(1). These sentences describe
§ 5.758, paragraph (d), is based on the under a complex and staggered rate- the election the surviving spouse is
fifth sentence of current § 3.701(a). We setting system for DIC benefits, the entitled to make for death benefits based
note that this provision also appears in lowest possible DIC payment (for a on the death of more than one veteran
proposed § 5.757(e)(3). We believe it is service-connected death) was equal to or to whom the surviving spouse was
helpful to the reader to place the greater than the lowest possible married. The current regulation states
provision in both places (§ 5.757(e)(3) payment made for a nonservice- that when a surviving spouse elects
and § 5.758(d)), as the subject matter is connected death. However, in 1992, death benefits based on the death of one
appropriate for both regulations. Congress reformed the DIC program by veteran, then the death benefits to
5.759 Election Between Death passing Public Law 102–568. Effective which the surviving spouse is entitled
Compensation and Dependency and January 1, 1993, even the lowest based on the death of another veteran
Indemnity Compensation possible DIC rate always exceeds the are put in ‘‘suspense.’’ Rather than
highest possible death pension rate. referring to this ‘‘suspension of
Proposed § 5.759 is a plain language benefits’’ in the proposed regulation, we
restatement of paragraphs (a), (c), and 5.760 Electing Improved Death propose merely to state that a surviving
(d)(1) of current § 3.702. It applies to Pension Instead of Dependency and spouse may ‘‘elect’’ or ‘‘reelect’’ such
elections between DIC and death Indemnity Compensation benefits. The terms ‘‘elect’’ and
compensation. ‘‘reelect’’ are more consistent with other
Paragraph (a) of proposed § 5.759 is Proposed § 5.760 is based on current regulations in this NPRM and are clearer
based on current § 3.702(a). It states that § 3.702(d)(2), which states that a to readers. No substantive change is
a person entitled to receive both death surviving spouse who is receiving DIC intended.
compensation and DIC must choose one may elect to receive Improved Death
or the other benefit. It also states that a Pension instead. This is a simple 5.762 Payment of Multiple VA
claim for service-connected death restatement of the current provision, Benefits to a Surviving Child Based on
benefits will be considered a claim for with no substantive change. However, the Service of More Than One Veteran
DIC, subject to confirmation from the we have not included the reference to Paragraphs (a) and (b) of proposed
applicant. This is a plain language November 2, 1994 because, under § 5.762 are based on current
restatement of § 3.702(a). No substantive 1317(b), as enacted by Public Law 103– § 3.700(b)(2), pertaining to concurrent
change is intended. Paragraph (a) also 446, the right of election applies to receipt of VA benefits by a child.
restates the rule contained in current anyone who is now or will become Paragraph (c) of proposed § 5.762 is
§ 3.702(d)(1) that an election to receive entitled to DIC, irrespective of when the primarily based on current §§ 3.659 and
DIC instead of death compensation is award originally became effective. 3.703, both of which are entitled, ‘‘Two
final once the beneficiary receives parents in same parental line.’’ It is also
payment for DIC. based on long-standing VA practice.
With few exceptions, VA is prohibited indemnity compensation for the same Proposed § 5.764(a)(2) is based on
from paying a benefit to a child, based period.’’ current § 3.703(c) and states that when
on the service of one parent, while Paragraph (c)(6)(ii) of proposed an election is made by a child with
paying a benefit to the same child, based § 5.762 is based on current § 3.659(b), more than one parent in the same
on the service of a different parent in which describes the effective date of an parental line, VA will determine the
the same parental line. ‘‘Same parental award based on the child’s election, and entitlement and the rate of benefits
line’’ is not defined in current VA current § 3.503(a)(7), which states the payable to other beneficiaries in the
regulations. It means that a child has effective date of discontinuance of same case as if the child electing DEA
more than one veteran father or more pension, compensation, or DIC in two- did not exist. This is a plain language
than one veteran mother for VA parent cases. These provisions are restatement of current § 3.703(c).
purposes. For example, if a child’s rewritten in plain English; no Proposed § 5.764(a)(3) states the
biological father, who is a veteran, dies, substantive change is intended. applicable effective dates when a child
and another male veteran subsequently elects DEA. It is a plain language
5.763 Payment of Multiple VA
adopts the child, VA considers the child restatement of current §§ 3.503(a)(8) and
Benefits to More Than One Child Based
to have two fathers in the same parental 3.659(b).
on the Service of the Same Veteran Proposed § 5.764(b) is based on
line. We have added a definition of
‘‘same parental line’’ in paragraph (c)(1) Proposed § 5.763 is a plain language current § 3.707(a) and current
of proposed § 5.762. rewrite of current § 3.704(a). We have § 21.3023(b). It states that a child who
limited the application of § 5.763 to is under the age of 18 or helpless may
The prohibition against a child’s
Improved Pension, dependency and receive VA pension or DIC at the same
concurrent receipt of death benefits for
indemnity compensation (DIC), and time as DEA.
more than one parent in the same
Survivors’ and Dependents’ Educational Proposed § 5.764(c) is based on
parental line applies only to DIC or
Assistance (DEA). We have not included current § 3.707(b) and current
death compensation (but not death
a reference to death compensation, as it § 20.3023(d). It states that a surviving
pension) between January 1, 1957, and
is highly unlikely that there will be any spouse may receive VA pension or DIC
June 8, 1960. In other words, a child
children receiving death compensation. at the same time as DEA.
could receive death pension for one
We have not included references to Old- Proposed § 5.764(d) is based on
parent at the same time as DIC or death
Law Pension or Section 306 Pension, as § 3.707(a) and directs the reader to the
compensation for another parent in the
it has been indicated in other provisions of current § 20.3023 for
same parental line if both parents died
regulations that VA cannot pay specific criteria regarding elections of
before June 9, 1960. From June 9, 1960,
increased rates for Old-Law or Section DEA.
and thereafter, the prohibition against
306 Pension.
concurrent receipt includes all three We note that current § 3.704(b) is Non-Inclusion of Other Part 3
death benefits. The effective dates of addressed in a separate NPRM, subpart Provisions
these prohibitions are included in the G, which is titled, ‘‘Dependency and As discussed earlier in this NPRM,
introductory paragraph of current Indemnity Compensation Benefits.’’ The there are certain regulations or portions
§ 3.659 and paragraph (a) of current rule was published as proposed of regulations that we propose not to
§ 3.703. We have restated the effective § 5.536(h) in that NPRM on October 21, carry forward to part 5.
dates of these prohibitions in plain 2005. See 70 FR 61326. We propose that paragraphs (j)(2)
language in paragraph (c)(3) of proposed through (j)(6) of current § 3.400 not be
§ 5.762. 5.764 Payment of Survivors’ and repeated in new part 5. These are
Paragraph (c)(4) of proposed § 5.762 is Dependents’ Educational Assistance and effective-date provisions for the election
based on the last sentence of current VA Death Pension or Dependency and of pension payable under Public Law
§ 3.703(b), which states that a child has Indemnity Compensation for the Same 86–211 (‘‘Section 306 Pension’’). New
the right to elect or reelect one or more Period entitlement under this program is no
times to receive benefits based on the Proposed § 5.764 is a plain language longer possible. A separate NPRM
death of either parent in the same restatement of current paragraphs (a) pertains to continuing awards of Section
parental line. It is rewritten in plain and (b) of § 3.707, as well as 306 Pension. See 69 FR 77578.
English; no substantive change is §§ 3.503(a)(8), 3.659(b), and 3.703(c) We propose not to include the
intended. concerning Survivors’ and Dependents’ provisions of current § 3.751 in part 5
Paragraph (c)(5) of proposed § 5.762 is Educational Assistance (DEA). We have because it is redundant of the provisions
based on current § 3.659(a), which removed the references to of current § 3.750, which are included
describes the offset VA applies when a ‘‘compensation,’’ which are referring to in § 5.740 and § 5.745. Furthermore,
child makes a reelection. death compensation, because it is highly current § 3.751 provides that military
Paragraph (c)(6)(i) of proposed § 5.762 unlikely that a current recipient of DEA retirees are not entitled to ‘‘statutory
is based on current § 3.703(c). It would be eligible for death awards’’ of disability compensation in
addresses the effect of a child’s election compensation, since death addition to military retired pay.
on other beneficiaries. It has been compensation may only be awarded for ‘‘Statutory award’’ is a term that in VA
rewritten for improved clarity. No deaths occurring before January 1, 1957. vernacular means an award of special
substantive changes are intended. The Proposed § 5.764 is also based on monthly compensation (SMC) under
reference to ‘‘dependents’ educational § 21.3023, which contains the specific paragraphs (k) through (s) of 38 U.S.C.
assistance’’ (DEA) in current § 3.703(c) substantive criteria for elections of DEA. 1114. We believe that proposed part 5
has not been repeated because proposed Proposed § 5.764(a)(1) states that a would make it sufficiently clear that
§ 5.762 involves death benefits only, child over the age of 18 must elect disability compensation includes SMC.
and the effects of a child’s election of between VA pension or DIC and DEA, In addition, some readers could be
DEA are included in proposed § 5.764, because VA cannot pay DEA to such a confused by the term ‘‘statutory award’’
‘‘Payment of Survivors’ and child at the same time it pays the child in this context, particularly the second
Dependents’ Educational Assistance and pension or DIC. It is based on current reference to it in § 3.751. Because all VA
VA pension or dependency and § 3.707(a) and current § 21.3023(a). benefits are provided according to
statute, some readers might erroneously the economy, productivity, competition, Approved: June 22, 2007.
believe that a veteran must waive jobs, the environment, public health or Gordon H. Mansfield,
military retired pay in order to receive safety, or State, local, or tribal Deputy Secretary of Veterans Affairs.
a clothing allowance or Medal of Honor governments or communities; (2) create For the reasons set forth in the
Pension, for example, when this is not a serious inconsistency or otherwise preamble, VA proposes to amend 38
the case. interfere with an action taken or CFR Part 5, as proposed to be added at
We propose that § 3.754 concerning planned by another agency; (3) 69 FR 4832, January 30, 2004, and as
emergency officers’ retirement pay materially alter the budgetary impact of amended, by adding subpart L as
(EOR) not be included in proposed part entitlements, grants, user fees, or loan follows:
5 because there are no longer any programs or the rights and obligations of
veterans affected by this rule and this PART 5—COMPENSATION, PENSION,
recipients thereof; or (4) raise novel
rule is obsolete. BURIAL, AND RELATED BENEFITS
legal or policy issues arising out of legal
Endnote Regarding Amendatory mandates, the President’s priorities, or Subpart L—Payments and Adjustment to
Language the principles set forth in the Executive Payments
We intend to ultimately remove part Order. Payments to Beneficiaries Who Are Eligible
3 entirely, but we are not including The economic, interagency, for More Than One Benefit—General
amendatory language to accomplish that budgetary, legal, and policy Provisions
at this time. VA will provide public implications of this proposed rule have Sec.
notice before removing part 3. been examined and it has been 5.740 Definitions relating to elections.
determined to be a significant regulatory 5.741 Persons who may make an election.
Paperwork Reduction Act 5.742 Finality of elections; cancellation of
action under the Executive Order certain elections.
This document contains provisions
constituting a collection of information, because it is likely to result in a rule that 5.743 General effective dates for awarding,
at 38 CFR 5.764 under the provisions of may raise novel legal or policy issues reducing, or discontinuing VA benefits
arising out of legal mandates, the because of an election.
the Paperwork Reduction Act (44 U.S.C. 5.744 [Reserved]
3501–3521). No new or proposed President’s priorities, or the principles
revised collections of information are set forth in the Executive Order. Payments From Service Departments and the
associated with this proposed rule. The Effects of Those Payments on VA Benefits for
Unfunded Mandates Veterans
information collection requirements for
§ 5.764 are currently approved by the The Unfunded Mandates Reform Act 5.745 Entitlement to concurrent receipt of
Office of Management and Budget military retired pay and VA disability
of 1995 requires, at 2 U.S.C. 1532, that compensation.
(OMB) and have been assigned OMB agencies prepare an assessment of 5.746 Prohibition against receipt of active
control number 2900–0098. anticipated costs and benefits before military service pay and VA benefits for
Regulatory Flexibility Act issuing any rule that may result in an the same period.
expenditure by State, local, and tribal 5.747 Effect of military readjustment pay,
The Secretary hereby certifies that governments, in the aggregate, or by the disability severance pay, and separation
this proposed regulatory amendment pay on VA benefits.
private sector, of $100 million or more 5.748 Concurrent receipt of VA disability
will not have a significant economic
(adjusted annually for inflation) in any compensation and retirement pay by
impact on a substantial number of small
entities as they are defined in the 1 year. This proposed rule would have certain officers of the Public Health
no such effect on State, local, and tribal Service.
Regulatory Flexibility Act, 5 U.S.C. 601– 5.749 [Reserved]
612. This proposed amendment would governments, or on the private sector.
not affect any small entities. Therefore, Payments From Federal Agencies and the
Catalog of Federal Domestic Assistance Effects of Those Payments on VA Benefits for
pursuant to 5 U.S.C. 605(b), this Numbers and Titles Veterans and Survivors
proposed amendment is exempt from
the initial and final regulatory flexibility The Catalog of Federal Domestic 5.750 Election between VA benefits and
analysis requirements of sections 603 compensation under the Federal
Assistance program numbers and titles
Employees’ Compensation Act for death
and 604. for this proposal are 64.102, or disability due to military service.
Executive Order 12866 Compensation for Service-Connected 5.751 Election between VA benefits and
Deaths for Veterans’ Dependents; compensation under the Federal
Executive Order 12866 directs 64.104, Pension for Non-Service- Employees’ Compensation Act for death
agencies to assess all costs and benefits Connected Disability for Veterans; or disability due to Federal civilian
of available regulatory alternatives and, 64.105, Pension to Veterans Surviving employment.
when regulation is necessary, to select 5.752 Procedures for elections between VA
Spouses, and Children; 64.109, Veterans benefits and compensation under the
regulatory approaches that maximize Compensation for Service-Connected
net benefits (including potential Federal Employees’ Compensation Act.
Disability; 64.110, Veterans Dependency 5.753 Payment of VA benefits and civil
economic, environmental, public health service retirement benefits for the same
and Indemnity Compensation for
and safety, and other advantages; period.
Service-Connected Death; and 64.127,
distributive impacts; and equity). The 5.754 Effect of payment of compensation
Executive Order classifies a ‘‘significant Monthly Allowance for Children of
under the Radiation Exposure
regulatory action,’’ requiring review by Vietnam Veterans Born with Spina Compensation Act of 1990 on payment
the Office of Management and Budget Bifida. of certain VA benefits.
(OMB) unless OMB waives such review, 5.755 [Reserved]

List of Subjects in 38 CFR Part 5
as any regulatory action that is likely to Rules Concerning the Receipt of Multiple VA
result in a rule that may: (1) Have an Administrative practice and Benefits
annual effect on the economy of $100 procedure, Claims, Disability benefits, 5.756 Prohibition against concurrent receipt
million or more or adversely affect in a Pensions, Radioactive materials, of certain VA benefits based on the
material way the economy, a sector of Veterans. service of the same veteran.
5.757 Elections between VA disability or (1) The spouse of a claimant or beneficiary receives payment of the
death compensation and pension. beneficiary if the claimant or beneficiary elected benefit by direct deposit or
5.758 Electing Improved Pension instead of has been declared to be an incompetent electronic funds transfer, the election is
Old-Law Pension or Section 306
veteran under § 13.57 of this chapter. final when the applicable financial
Pension.
5.759 Election between death compensation
(2) The legal custodian of a claimant institution receives the second payment
and dependency and indemnity or beneficiary if the claimant or of the elected benefit.
compensation. beneficiary is a minor under § 13.58 of (c) Finality of an election when a
5.760 Electing Improved Death Pension this chapter. beneficiary dies after filing an election.
instead of dependency and indemnity (3) A fiduciary that VA designates, When a beneficiary dies after filing an
compensation. under § 13.55 of this chapter. election, but before the beneficiary had
5.761 Concurrent receipt of disability (4) A court-appointed fiduciary, under negotiated the check or before the
compensation, pension, or death benefits § 13.59 of this chapter. applicable financial institution had
by a surviving spouse based on the (5) The chief officer of the institution received the second payment for the
service of more than one veteran. in which the veteran is receiving care
5.762 Payment of multiple VA benefits to a elected benefit, the election is final even
and treatment, and whom VA has though it would not be considered final
surviving child based on the service of
more than one veteran. designated as a payee, under under paragraph (a) or (b) of this
5.763 Payment of multiple VA benefits to §§ 13.55(b)(6) and 13.61 of this chapter. section.
more than one child based on the service (b) Elections from a Member of (d) Cancellation of an election made
of the same veteran. Congress or duly authorized by an incompetent person. If VA finds
5.764 Payment of Survivors’ and representative. This paragraph (b) that a beneficiary was mentally
Dependents’ Educational Assistance and applies if VA receives a communication incompetent when he or she elected a
VA death pension or dependency and from a Member of Congress or from a benefit, the beneficiary, or another
indemnity compensation for the same claimant or beneficiary’s duly
period.
person listed in § 5.741(a) who is acting
authorized representative indicating on behalf of the beneficiary, may cancel
5.765–5.769 [Reserved]
that a claimant or beneficiary wishes to that election.
Authority: 38 U.S.C. 501(a) and as noted in elect a VA benefit. (If the (e) Cancellation of elections that were
specific sections. communication is from a service based on erroneous VA information. A
Subpart L—Payments and organization, attorney, or agent, there beneficiary who elected a benefit based
Adjustments to Payments must be a power of attorney in effect at on erroneous information that was
the time the communication was provided by VA may cancel the
Payments to Beneficiaries Who Are written.) If VA receives such a election. For this right to cancellation to
Eligible for More Than One Benefit— communication, VA will provide notice apply, VA must make a determination
General Provisions to the claimant or beneficiary that a that it previously provided erroneous
person listed in paragraph (a) of this information. This determination must
§ 5.740 Definitions relating to elections. section must sign such an election. If a be based on the same evidence that VA
(a) Election means any writing, signed properly signed election is then timely used when it previously provided the
by a person authorized by § 5.741, filed under § 5.740(d), VA will consider erroneous information.
‘‘Persons who may make an election,’’ the properly signed election to have
expressing a choice between two or (Authority: 38 U.S.C. 501(a))
been filed on the date it received the
more VA benefits to which the person communication from the Member of § 5.743 General effective dates for
is entitled, or between VA and other Congress or the duly authorized awarding, reducing, or discontinuing VA
Federal benefits to which the person is representative. benefits because of an election.
entitled. (a) General effective date for award;
(b) Initial election means the first (Authority: 38 U.S.C. 501(a), 5103(b)(1))
offset—(1) Effective date of award.
election a person, authorized by § 5.741, § 5.742 Finality of elections; cancellation Unless otherwise provided in this part,
makes between two or more benefits. of certain elections. when a claim is pending and an election
(c) Reelection means an election a This section explains when an is timely filed under § 5.740(d), the
person, authorized by § 5.741, makes election or reelection becomes final. A effective date for an award of an elected
between benefits that were the subject of final election or reelection ordinarily benefit shall be the same as the effective
an initial election. may be changed only by cancellation date VA would assign for the awarded
(d) Timely filed with respect to under paragraph (d) or (e) of this section benefit if no election were required.
elections means that a person, or by reelection, if authorized. Other Unless otherwise provided in this part,
authorized by § 5.741, files an election provisions of this part specify when when a beneficiary elects a different
between two or more benefits within 1 reelection is authorized and when a benefit, the effective date for an award
year of VA’s notice that such an election final election or reelection is of the elected VA benefit is the date VA
is required. irrevocable. receives the election.
(Authority: 38 U.S.C. 501(a), 5103(b)) (a) Finality of an election when (2) Offset. Payments of the elected
Cross reference: § 5.572 ‘‘Effective benefits are received by check. Except as benefit are subject to an offset. The
dates for reduction or discontinuance otherwise provided in this section, if the payments will be offset by any
based on increased income-parents’ beneficiary receives payment of the payments the beneficiary received for
DIC.’’ elected benefit by check, the election is another benefit for the same period.
final when the beneficiary (or a person This offset will occur only if the two
§ 5.741 Persons who may make an authorized to act on the beneficiary’s benefits cannot be received
election. behalf under § 5.741) negotiates the first concurrently.

(a) General. VA will accept an check for the elected benefit. (b) Effective date of reduction or
election signed by a claimant or (b) Finality of an election when discontinuance. Unless otherwise
beneficiary, or if applicable, by any one benefits are received by direct deposit or provided in this part, when VA must
of the following persons acting on electronic funds transfer. Except as reduce or discontinue payments because
behalf of a claimant or beneficiary: otherwise provided in this section, if the a beneficiary elected a different VA
benefit, or a non-VA benefit, the with less than 20 years of creditable (2) An election filed within 1 year
effective date of the reduction or service are not eligible for concurrent from the date of notification of VA
discontinuance is the same date as the receipt. entitlement will be considered as
effective date of the award of the (4) Improved Pension. A veteran may ‘‘timely filed’’ for effective date
different VA benefit or the non-VA receive Improved Pension and military purposes. If the veteran is incompetent,
benefit. retired pay at the same time without the 1-year period will begin on the date
(Authority: 38 U.S.C. 5110, 5112, 5304, 5305) having to waive military retired pay. that notification is sent to the next
However, in determining entitlement to friend or fiduciary. In initial
§ 5.744 [Reserved] Improved Pension, VA will treat determinations, elections may be
Payments From Service Departments military retired pay in the same manner applied retroactively if the claimant was
and the Effects of Those Payments on as countable income from other sources. not advised of his or her right of
VA Benefits for Veterans (c) Waiver—(1) When a waiver is election and its effect.
necessary. (i) A waiver of military (e) Effective date rules for elections.
§ 5.745 Entitlement to concurrent receipt retired pay is necessary in order to (1) If an election is timely filed under
of military retired pay and VA disability paragraph (d)(2) of this section, the
compensation. receive disability compensation when a
veteran is eligible for both military effective date of the election will be the
(a) Definition of military retired pay. date of entitlement to the elected
retired pay and disability compensation
For the purposes of this part, military benefit.
but is not eligible under paragraphs
retired pay is payment received by a (2) If a waiver is properly filed under
(b)(1) or (b)(2) of this section to receive
veteran that is classified as retired pay paragraph (c), the effective date of the
both benefits at the same time.
by the Service Department, including waiver will be the day following
retainer pay, based on the recipient’s (ii) All veterans who are eligible to
receive both military retired pay and discontinuance or reduction of
service as a member of the Armed retirement pay.
Forces or as a commissioned officer of disability compensation at the same
time under paragraphs (b)(1) or (b)(2) of (3) If a reelection is made under
the Public Health Service, the Coast and
this section, except those receiving paragraph (d)(1) of this section, the
Geodetic Survey, the Environmental
compensation for a disability rated 100 effective date of the election will be the
Science Services Administration, or the
percent, must file a waiver in order to date that the reelection is received by
National Oceanic and Atmospheric
receive the maximum allowable amount VA.
Administration.
(b) Payment of both military retired of disability compensation during the (Authority: 38 U.S.C. 5304(a), 5305)
pay and disability compensation or phase-in period. For veterans receiving
disability compensation based on a VA § 5.746 Prohibition against receipt of
Improved Pension—(1) Compensation. active military service pay and VA benefits
Subject to paragraphs (b)(2) and (b)(3) of determination of individual
for the same period.
this section, a veteran who is entitled to unemployability, the phase-in period
military retired pay and disability ends on December 30, 2009. For all (a) Definition of active military service
compensation for a service-connected other veterans, the phase-in period ends pay. For the purposes of this section,
disability rated 50 percent or more, or on December 31, 2013. After the phase- active military service pay means pay
a combination of service-connected in period, veterans retired under 10 that a veteran receives for active duty,
disabilities rated at 50 percent or more, U.S.C. Chapter 61 who are eligible for active duty for training, or inactive duty
under the schedule for rating disabilities concurrent receipt must still file a training. Active military service pay
(38 CFR part 4, subpart B), or based on waiver under the circumstances does not include pay for time spent by
a determination of individual described in paragraph (b)(2)(ii) of this members of the Reserve Officer Training
unemployability under 38 CFR 4.16, is section. Corps in drills as part of their activities
entitled to receive both payments as members of the corps.
(Authority: 10 U.S.C. 1414, 38 U.S.C. 5304,
subject to the phase-in period described 5305)
(b) Prohibition against receipt of VA
in paragraph (c) of this section. benefits at the same time as active
(2) Chapter 61 disability retirees (2) How to file a waiver of military military service pay. VA will not pay
retiring with 20 or more years of service. retired pay. A veteran may request a disability compensation or pension to a
Disability retired pay payable under 10 waiver of military retired pay in any veteran for any period for which the
U.S.C. Chapter 61 to a veteran with 20 written, signed statement, including a veteran receives active military service
or more years of creditable service may VA form, which reflects a desire to pay.
be paid concurrently with disability waive all or some military retired pay. (c) Effective date of discontinuance of
compensation to a qualifying veteran The statement must be submitted to VA payments for VA benefits during active
subject to the following: or to the Federal agency that pays the duty status. Unless the veteran elects to
(i) Any waiver required during the veteran’s military retired pay. VA will receive VA benefits instead of active
phase-in period under paragraph treat a claim for VA disability military service pay, VA will
(c)(1)(ii) of this section; and compensation filed by a veteran who is discontinue payments effective the day
(ii) If the veteran’s disability retired entitled to military retired pay as a the veteran begins active duty service. If
pay exceeds the amount of retired pay waiver. VA does not know the exact date of the
the veteran would have received had the (d) Elections and the right to reelect veteran’s return to active duty, VA will
veteran retired based on length of either benefit. (1) A veteran who has discontinue payments effective the first
service, the veteran must waive that filed a waiver of military retired pay day of the month that follows the month
excess amount of disability retired pay under this section has elected to receive for which it last paid benefits. If the
in order to receive VA disability disability compensation. A veteran may exact date of the veteran’s return to
compensation. reelect between benefits covered by this active duty thereafter becomes known,
(3) Chapter 61 disability retirees section at any time by submitting a VA will then discontinue payments
retiring with less than 20 years of written, signed statement to VA or to the effective as of that date.
service. Veterans who receive disability Federal agency that pays the veteran’s (d) Resumption of payments for VA
retired pay under 10 U.S.C. Chapter 61 military retired pay. benefits on release from active duty—
(1) Effective date. If otherwise in However, VA must receive a claim for determined under part 4 of this chapter.
order, VA will resume payments readjustment within 1 year after the end The ‘‘initial determination of the degree
effective the day after the date of release of the fiscal year during which VA of disability’’ must be made without
from active duty if VA receives a claim benefits were waived. consideration in whole or in part of a
to resume payments within 1 year after (Authority: 10 U.S.C. 12316; 38 U.S.C. 501(a), need for hospitalization or a period of
the date of release. Otherwise, the 5304(c)) convalescence. It does not include a
effective date is 1 year prior to the date temporary 100 percent rating assigned
VA receives the claim to resume § 5.747 Effect of military readjustment pay, under §§ 4.28, 4.29, or 4.30 of this
payments. disability severance pay, and separation chapter.
(2) Rate—(i) Static service-connected pay on VA benefits. (ii) Rate of recoupment prior to an
disabilities. If the evidence of record (a) Lump-sum readjustment pay. This initial determination of the degree of
shows that the level of disability had paragraph (a) applies when entitlement disability. When a veteran is receiving a
become static at the time of entry into to disability compensation was temporary evaluation assigned under
active duty, VA will resume payments established on or after September 15, §§ 4.28, 4.29, or 4.30 of this chapter and
for a service-connected disability at the 1981. VA has not yet made an initial
same disability level that was in effect (1) Recoupment of lump-sum determination of the degree of
immediately prior to entering active readjustment pay. A veteran who has disability, VA will recoup at the rate
duty. received a lump-sum readjustment payable, based on that temporary
(ii) Non-static service-connected payment may also receive disability evaluation, for the disability or
disabilities. Except as provided in compensation for disability incurred in disabilities for which the severance pay
paragraph (d)(2)(i) of this section, VA or aggravated by service prior to the date was granted.
will resume payments based on the of receipt of the lump-sum readjustment (iii) Rate of recoupment after an
degree of disability found to exist when payment. However, the lump-sum initial determination of the degree of
the award is resumed. VA will ascertain readjustment payment will be recouped disability. After making an initial
the degree of disability by considering from the disability compensation. determination of the degree of
all the facts, including facts provided in (2) Disability compensation for disability, VA will recoup VA disability
records from the service department disability incurred or aggravated in compensation at the monthly rate
relating to the most recent period of subsequent service is not subject to payable for the degree of disability
active military service. recoupment. The veteran must receive assigned. VA will not thereafter change
(3) Application of § 3.31. Resumptions the full amount of the monthly the rate of recoupment based on
under paragraph (d) of this section are compensation including additional reevaluations of the veteran’s disability
not subject to § 3.31 of this chapter, amounts for dependents, payable for a that lead to an increased rating.
‘‘Commencement of the period of service-connected disability that was
payment,’’ except to the extent that the (Authority: 10 U.S.C. 1174(h) and 1212(c); 38
incurred in or aggravated in a period of
disability evaluation is increased. U.S.C. 501, 1161)
service that is subsequent to the period
(4) Prior service-connection awards. on which the readjustment pay was (c) Separation pay and special
In determining whether disability based. separation benefits. This paragraph (c)
compensation payments should be applies when entitlement to disability
(Authority: 10 U.S.C. 1174(h)(2); 38 U.S.C.
resumed under paragraph (d) of this compensation was established on or
501(a))
section, VA will not disturb prior after September 15, 1981.
determinations of service connection (b) Disability severance pay—(1) (1) Recoupment of separation pay and
except as provided in § 3.105 of this Recoupment of disability severance pay special separation benefits. A veteran
chapter. when VA compensation is awarded for who has received separation pay or
(5) New claims for service connection. a severance disability. When VA special separation benefits may also
If the veteran incurs or aggravates a disability compensation is awarded receive disability compensation for a
disability during the subsequent period based on the same disability or disability incurred in or aggravated by
of service, VA will not award service disabilities for which the veteran service prior to the date of receipt of
connection for the new disability unless received disability severance pay, VA separation pay or special separation
it receives a claim for service will recoup from the disability benefits. However, the separation pay or
connection for that disability. compensation award the full amount of special separation benefits will be
(e) Waiver of VA benefits during the disability severance pay. recouped from the disability
active duty for training or inactive duty (2) Rate of recoupment of disability compensation.
for training—(1) Waiver of VA benefits. severance pay. Generally, VA will (2) Disability compensation for
Veterans who are Reservists and recoup disability severance pay from disability incurred or aggravated in
National Guard members may waive VA disability compensation at the rate subsequent service is not subject to
their VA pension or compensation for payable for the initial determination of recoupment. The veteran must receive
periods of active duty for training or the degree of the disability for which the the full amount of the monthly
inactive duty for training (see § 5.23, veteran was awarded disability compensation including additional
‘‘How VA classifies Reserve and severance pay. However, the veteran amounts for dependents, payable for a
National Guard duty). Waivers may must receive the full amount of the service-connected disability that was
cover anticipated periods of training; monthly compensation including incurred in or aggravated in a period of
however, each waiver is effective for not additional amounts for dependents, service that is subsequent to the period
more than 1 year. payable for any additional nonseverance on which the separation pay or special
(2) Readjustments. VA may authorize pay disabilities. separation benefits were based.
retroactive payments of previously (i) Definition of ‘‘initial determination
waived VA pension or compensation if of the degree of disability’’. The ‘‘initial (Authority: 10 U.S.C. 1174, 1174a)
readjustment is in order because the determination of the degree of (d) Amount recouped—(1) Lump-sum
veteran did not receive service pay for disability’’ means the first regular readjustment pay, disability severance
a period of training duty as anticipated. schedular compensable rating pay, and separation pay— (i) Payments
received before October 1, 1996. VA will (FECA) for a disability or death incurred surviving spouse receives FECA
recoup from VA disability before January 1, 1957, due to service in compensation.
compensation the total amount of lump- the Armed Forces, and who is also (Authority: 5 U.S.C. 8116(b); 38 U.S.C.
sum readjustment pay, disability entitled to VA pension, compensation, 501(a), 1316(b), 1317(a))
severance pay, and separation pay a or dependency and indemnity
veteran received before October 1, 1996, compensation (DIC) based on the same § 5.751 Election between VA benefits and
regardless of the amount of Federal disability or death (including compensation under the Federal
income tax withheld from such compensation or DIC payable under 38 Employees’ Compensation Act for death or
disability due to Federal civilian
payments. U.S.C. 1151, ‘‘Benefits for persons employment.
(ii) Payments received after disabled by treatment or vocational
September 30, 1996. VA will recoup (a) When both VA benefits and
rehabilitation’’) must elect whether to
from VA disability compensation the Federal Employees’ Compensation Act
receive FECA compensation or the
total amount of lump-sum readjustment (FECA) compensation are based upon
applicable VA benefit. An election
pay, disability severance pay, and the same disability or death— (1)
under this paragraph (a)(1) is
separation pay a veteran received after Election required. Except as otherwise
irrevocable once the election becomes
September 30, 1996, less the amount of provided in this section, an individual
final under § 5.742, with the exception
Federal income tax withheld from such who is entitled to compensation from
of the situation addressed in paragraph
payments. the U.S. Department of Labor’s Office of
(a)(2) of this section.
(2) Special separation benefits. VA Workers’ Compensation Programs under
(2) Right to reelect DIC in lieu of FECA
will recoup from VA disability FECA for a disability or death due to
compensation at any time. An
compensation the total amount of Federal civilian employment and who is
individual who is receiving benefits
special separation benefits under 10 also entitled to VA compensation or
under FECA based on death in military
U.S.C. 1174a less the amount of Federal dependency and indemnity
service may elect at any time to receive
income tax withheld from such compensation (DIC) based on the same
DIC in lieu of FECA compensation.
payments. disability or death must elect whether to
However, such an election of DIC is
receive FECA compensation or the
(Authority: 10 U.S.C. 1174, 1174a, 1174(h)(2), irrevocable once the election becomes
applicable VA benefit.
1212(c)) final under § 5.742. (2) No election is required for VA
(3) Future increases in impairment. If awards approved prior to September 13,
§ 5.748 Concurrent receipt of VA disability a veteran makes an election of FECA
compensation and retirement pay by certain 1960. Any award approved prior to
officers of the Public Health Service.
compensation instead of VA disability September 13, 1960, authorizing VA
compensation for a particular disability, benefits concurrently with an award of
Disability compensation may be paid and there is subsequent increased
concurrently with retirement pay to an FECA compensation for a disability or
impairment based on that disability, the death due to Federal civilian
officer of the commissioned corps of the award of increased compensation based
Public Health Service, who was employment is not subject to the
on the increased impairment will be election requirement in paragraph (a)(1)
receiving disability compensation on considered a new benefit and the
December 31, 1956, as follows: of this section.
veteran may elect to receive FECA (b) When VA benefits and FECA
(a) An officer who incurred a
compensation or VA compensation as to compensation are each based on a
disability before July 29, 1945, but
that increased impairment. If the different disability or death. There is no
retired unrelated to disability prior to
veteran elects VA compensation for the prohibition against concurrent payment
such date.
increase, VA will pay only the of FECA compensation and VA
(b) An officer who incurred a
difference between the rate payable for compensation if entitlement to each
disability before July 29, 1945, but
the increased evaluation and the rate benefit is based on a different disability
retired unrelated to disability between
payable for the prior evaluation. or death. The election described in
July 4, 1952, and December 31, 1956.
(c) An officer who incurred a (b) Effect of a surviving spouse’s paragraph (a)(1) of this section is not
disability between July 29, 1945, and election of FECA compensation or VA required in such cases.
July 3, 1952, but retired unrelated to benefits on the rights of children— (1) (c) Election is irrevocable. An election
disability between July 4, 1952, and Cases in which a spouse’s entitlement to receive FECA compensation or VA
December 31, 1956. controls a child’s entitlement. If a benefits under this section is irrevocable
child’s entitlement to VA benefits is once the election becomes final under
(Authority: Sec. 501(b), Pub. L. 84–881, 70 controlled by the surviving spouse’s
Stat. 881; E.O. 9575, 10 FR 7895; E.O. 10349,
§ 5.742. There is no right of reelection.
entitlement, the surviving spouse’s (d) Future increases in disability. If a
17 FR 3769)
election controls the rights of any of the veteran makes an election of FECA
§ 5.749 [Reserved] veteran’s children, even if the child is compensation instead of VA disability
not in the custody of the surviving compensation for a particular disability,
Payments From Federal Agencies and spouse and even if the child is not and there is subsequent increased
the Effects of Those Payments on VA entitled to receive any benefits under impairment based on that disability, the
Benefits for Veterans and Survivors FECA. If the surviving spouse elects to award of increased compensation based
§ 5.750 Election between VA benefits and receive FECA compensation, the child’s on the increased disability will be
compensation under the Federal VA benefits will be discontinued on the considered a new benefit and the
Employees’ Compensation Act for death or same day that the surviving spouse’s VA veteran may elect to receive FECA
disability due to military service. benefits are discontinued. compensation or VA compensation as to
(a) General— (1) Election required. An (2) Cases in which a child has that increased disability.
individual who is entitled to independent entitlement. If a child is (e) Effect of a surviving spouse’s
compensation from the U.S. Department entitled to DIC or other VA benefits election of FECA compensation or VA
of Labor’s Office of Workers’ independent of the surviving spouse’s benefits on the rights of children— (1)
Compensation Programs under the entitlement, the child may receive such Cases in which a spouse’s entitlement
Federal Employees’ Compensation Act benefits at the same time that the controls a child’s entitlement. If a
child’s entitlement to VA benefits is payments of civil service retirement pension, death compensation, or
controlled by the surviving spouse’s benefits as income where income is a dependency and indemnity
entitlement, the surviving spouse’s factor in entitlement to VA benefits compensation (DIC) based on the service
election controls the rights of any of the except as otherwise provided in this of the same veteran.
veteran’s children, even if the child is part. (Authority: 38 U.S.C. 5304(a)(1))
not in the custody of the surviving (Authority: 38 U.S.C. 501(a))
spouse and even if the child is not § 5.757 Elections between VA disability or
entitled to receive any benefits under § 5.754 Effect of payment of compensation death compensation and pension.
FECA. If the surviving spouse elects to under the Radiation Exposure (a) Elections between disability
receive FECA compensation, the child’s Compensation Act of 1990 on payment of compensation and Improved Pension. A
VA benefits will be discontinued on the certain VA benefits. person who is entitled to receive both
same day that the surviving spouse’s VA (a) Disability compensation. (1) A disability compensation and Improved
benefits are discontinued. radiation-exposed veteran, as defined in Pension may elect or reelect at any time
(2) Cases in which a child has 38 CFR 3.309(d)(3), who receives a to receive either benefit unless
independent entitlement. If a child is payment under the Radiation Exposure otherwise provided in this part,
entitled to DIC or other VA benefits Compensation Act of 1990, as amended regardless of whether it is the greater or
independent of the surviving spouse’s (42 U.S.C. 2210 note) (RECA), will not lesser benefit.
entitlement, the child may receive such be denied disability compensation to (b) Elections between death
benefits at the same time that the which the veteran is entitled under 38 compensation and death pension. A
surviving spouse receives FECA CFR 3.309(d) for months beginning after person who is entitled to receive both
compensation. March 26, 2002. death compensation and death pension
(2) A veteran who is not a ‘‘radiation- may elect or reelect at any time to
(Authority: 5 U.S.C. 8116(b); 38 U.S.C. exposed veteran,’’ as defined in 38 CFR receive either benefit unless otherwise
501(a))
3.309(d)(3), is not entitled to VA provided in this part, regardless of
§ 5.752 Procedures for elections between disability compensation for disability whether it is the greater or lesser
VA benefits and compensation under the caused by a disease that is attributable benefit.
Federal Employees’ Compensation Act. to exposure to radiation for which the (c) Elections between disability
(a) Procedures prior to VA receipt of veteran has received a payment under compensation and Old-Law Pension or
an election between Federal Employees’ RECA. Section 306 Pension. A person who is
Compensation Act (FECA) (b) Dependency and indemnity entitled to receive both disability
compensation and VA benefits. When compensation (DIC). A person who compensation and Old-Law Pension or
there is evidence showing that a receives a payment under RECA based Section 306 Pension may elect to
claimant is receiving benefits from the upon a veteran’s death will not be receive either benefit. Such person may
U.S. Department of Labor’s Office of denied DIC to which the person is reelect at any time to receive the other
Workers’ Compensation Programs entitled under 38 CFR 3.5 and 3.22 for benefit unless otherwise provided in
(OWCP) under FECA for the same months beginning after March 26, 2002. this part, regardless of which is the
disability or death for which VA (c) Offset of RECA payment against greater or lesser benefit.
benefits are claimed, VA will— VA benefits. Notwithstanding (d) Effect of a veteran’s election of
(1) Advise OWCP of the pertinent paragraphs (a)(1) or (b) of this section, disability compensation or pension on
facts in the case, including the the amount of a RECA payment will be other beneficiaries. A veteran’s election
disabilities for which VA benefits are deducted from the amount of disability of disability compensation or pension
payable, and request that OWCP obtain compensation payable pursuant to under this section controls the right of
the election; and § 3.309(d) or the amount of DIC payable. any dependent in that case, even though
(2) Deny the VA claim, advise the (d) Effective date of discontinuance of the election results in the reduction of
claimant of the facts VA furnished to VA benefits. This paragraph applies the benefit payable to the dependent.
OWCP, and inform the claimant that when VA must discontinue VA (e) Effect of a surviving spouse’s
OWCP will contact the claimant disability compensation to an election on the rights of a child—(1)
concerning rights of election. individual because that individual General—the election of the surviving
(b) Procedures when there is an received RECA compensation. In such a spouse controls the claims of the child.
election of VA benefits instead of FECA case, VA will discontinue its benefits An election by a surviving spouse
compensation. If OWCP informs VA effective the first day of the month that controls the claims of all children
that the claimant has elected VA RECA benefits are issued. including children over 18 and children
benefits, VA will pay benefits effective (Authority: 38 U.S.C. 1112(c)(4), 1310(c); 42 not in the custody of the surviving
the date of receipt of the claim for VA U.S.C. 2210 note) spouse, even though the election results
benefits (or other effective date assigned in the reduction of the benefit payable
under this chapter based on such claim). § 5.755 [Reserved] to a child.
VA will offset FECA payments made (2) Exception—when a surviving
Rules Concerning the Receipt of
during the period between the effective spouse elects death compensation.
Multiple VA Benefits
date of the VA award and the date of When a surviving spouse elects death
election. § 5.756 Prohibition against concurrent compensation instead of Improved
receipt of certain VA benefits based on the Death Pension, an otherwise eligible
§ 5.753 Payment of VA benefits and civil service of the same veteran. child is not precluded from receiving
service retirement benefits for the same (a) Veterans. VA may not pay to a Improved Death Pension if the child is
period. veteran an award of disability not in the custody of a surviving spouse.

VA will pay VA benefits to an eligible compensation and an award of See § 5.417 Child custody for Improved
claimant or beneficiary at the same time disability pension at the same time Pension.
that the claimant or beneficiary is based on the veteran’s own service. (3) Exception—when a surviving
receiving civil service retirement (b) Survivors. VA may not pay to a spouse elects Improved Death Pension.
benefits. However, VA will consider survivor more than one award of death A surviving spouse’s election of
Improved Death Pension does not affect § 5.759 Election between death in this regulation or in § 5.464,
the benefits of a surviving child who compensation and dependency and ‘‘Multiple pension awards not payable,’’
was receiving a separate apportioned indemnity compensation. if a beneficiary is receiving death
award of Section 306 Pension or Old- (a) Election between benefits is pension, death compensation, or DIC as
Law Pension on December 31, 1978. required. A person who is eligible for the surviving spouse of one veteran, the
both death compensation and beneficiary is not barred from receiving
(f) Change from one law to another.
dependency and indemnity death pension, death compensation, or
Except as otherwise provided, where
compensation (DIC) must elect to DIC due to the death of a different
payments of pension or compensation receive one or the other benefit. veteran.
are being made to a person under one (1) Persons currently receiving death (c) Limitation—A surviving spouse is
law, the right to receive benefits under benefits. (i) A person who is currently entitled to payment of only one award
another law being in suspension, and a receiving death compensation may elect of death benefits at one time based on
higher rate of pension or compensation to receive DIC. the death of more than one veteran to
becomes payable under the other law, (ii) An election to receive DIC instead whom the surviving spouse was
benefits at the higher rate will not be of death compensation is irrevocable married—(1) Payment limitation. VA
paid for any date prior to the date of once the election becomes final under may not pay more than one death
receipt of an election. § 5.742. There is no right to reelection. pension, death compensation, or DIC
(Authority: 38 U.S.C. 501(a), 1542, 5304) (2) Persons claiming entitlement to award at a time to a surviving spouse
service-connected death benefits. VA based on the death of more than one
§ 5.758 Electing Improved Pension instead will treat a claim for service-connected veteran to whom the surviving spouse
of Old-Law Pension or Section 306 Pension. death benefits as a claim for DIC, subject was married.
(a) Right to elect Improved Pension. to confirmation by the claimant, unless (2) Election. A surviving spouse who
Except as otherwise provided in this the claimant specifically requests death is eligible for death pension, death
section, a pension beneficiary who was compensation. compensation, or DIC because of the
entitled on December 31, 1978 to (b) Limitation of election. An election deaths of more than one veteran to
receive Old-Law Pension or Section 306 of DIC may not be filed or withdrawn whom he or she was married may elect,
Pension, may elect at any time to after the death of the surviving spouse, or reelect, benefits based on the death of
receive Improved Pension instead. An child, or parent. See also § 5.742(c) any one such deceased spouse. The
election to receive Improved Pension (concerning the finality of an election of election or reelection may be made at
instead of Old-Law Pension or Section DIC when the beneficiary dies before any time. Benefits payable in the elected
306 Pension is irrevocable once the negotiating a DIC check). case will be offset by any payments the
election becomes final under § 5.742. (Authority: 38 U.S.C. 1317(a)) surviving spouse received based on the
There is no right to reelection. death of the other spouse for the same
Cross-reference: § 5.512, ‘‘Eligibility
period. The offset will occur only if the
(b) When a veteran’s spouse is also a for death compensation or death
surviving spouse was entitled to
veteran who is eligible to elect Improved pension instead of dependency and
benefits in the elected case prior to the
Pension. If a veteran who is eligible to indemnity compensation.’’
date of receipt of the election under
elect Improved Pension under this
§ 5.760 Electing Improved Death Pension § 5.567, ‘‘Effective dates for DIC or death
section has a spouse who is also a
instead of dependency and indemnity compensation awards,’’ or § 5.431,
veteran who is eligible to elect compensation. ‘‘Effective dates for Improved Death
Improved Pension under this section,
A surviving spouse who is entitled to Pension.’’
neither veteran may receive Improved
receive dependency and indemnity (Authority: 38 U.S.C. 5304(b)(1), (3))
Pension unless both elect to receive it.
compensation (DIC) may elect to receive
(c) When a beneficiary chooses to Improved Death Pension instead of DIC. § 5.762 Payment of multiple VA benefits to
receive Old-Law Pension or Section 306 a surviving child based on the service of
(Authority: 38 U.S.C. 1317(b)) more than one veteran.
Pension instead of Improved Pension. If
a pension beneficiary who is eligible to § 5.761 Concurrent receipt of disability (a) A surviving child is entitled to
elect Improved Pension under this compensation, pension, or death benefits concurrent receipt of disability
section does not do so, VA will continue by a surviving spouse based on the service compensation or pension and death
to pay that beneficiary Old-Law Pension of more than one veteran. benefits. If a surviving child is receiving
or Section 306 Pension at the monthly (a) Concurrent receipt of disability disability compensation or pension in
rate in effect on December 31, 1978, compensation or pension and death his or her own right as a veteran, the
unless that rate must be reduced or benefits. Except as otherwise provided surviving child is not barred from
discontinued under § 5.470, ‘‘Reasons in § 5.464, ‘‘Multiple pension awards receiving:
for discontinuing or reducing Section not payable,’’ if a surviving spouse is (1) An apportionment of disability
306 Pension or Old-Law Pension,’’ or receiving disability compensation or compensation or pension based on
under another regulation in this part. pension in his or her own right as a another veteran’s disability, or
veteran, the surviving spouse is not (2) Death pension, death
(d) Effect of a surviving spouse’s compensation, or dependency and
election of Improved Pension on the barred from receiving:
(1) An apportionment of disability indemnity compensation (DIC) due to
rights of a child. A surviving spouse’s the death of another veteran.
compensation or pension based on
election of Improved Pension does not (b) A surviving child is entitled to
another veteran’s disability, or
affect the benefits of a surviving child (2) Death pension, death more than one award of death benefits
who was receiving, on December 31, compensation, or dependency and based on the death of more than one
1978, a separate apportioned award of indemnity compensation (DIC) due to veteran. Except as otherwise provided
Section 306 Pension or Old-Law the death of another veteran. in paragraph (c) of this section or in
Pension. (b) Entitlement to death benefits § 5.464, ‘‘Multiple pension awards not
(Authority: 38 U.S.C. 501(a); Sec. 306(a) and based on the death of more than one payable,’’ if a surviving child is
(b), Pub. L. 95–588, 92 Stat. 2508) veteran. Except as otherwise provided receiving death pension, death
compensation, or DIC as the surviving determine the benefit rate to the § 5.764 Payment of Survivors’ and
child of one veteran, the surviving child surviving spouse and/or the other Dependents’ Educational Assistance and
is not barred from receiving death surviving child as if the surviving child VA death pension or dependency and
pension, death compensation, or DIC indemnity compensation for the same
making the election did not exist. period.
due to the death of a different veteran. (ii) Effective date. If VA determines
(c) Exception—child with more than (a) Child who has reached age 18—(1)
that benefits payable to the surviving Election is required. (i) A child who has
one parent in the same parental line— spouse and/or the other surviving child
(1) Definition. Same parental line means reached the age of 18 and is not helpless
should be increased, reduced, or may not receive VA death pension at the
that the child has more than one veteran
discontinued as a result of the election same time as he or she receives
father or more than one veteran mother
or reelection, such increase, reduction, Survivors’ and Dependents’ Educational
for VA purposes.
or discontinuance is effective the first Assistance (DEA) under 38 U.S.C.
(2) A surviving child is entitled to
day of the month following the month chapter 35, and must elect between VA
payment of no more than one death
benefit due to the death of more than for which VA last paid benefits. death pension and DEA.
one parent in the same parental line. (Authority: 38 U.S.C. 5304) (ii) A child who has reached the age
Except for insurance and as provided in of 18 and is not helpless may not
this paragraph (c), VA cannot pay more § 5.763 Payment of multiple VA benefits to receive dependency and indemnity
more than one child based on the service compensation (DIC) at the same time as
than one death benefit to, or based on
of the same veteran. he or she receives DEA benefits, and
the existence of, a surviving child
because of the death of more than one (a) Scope. This section applies when must elect between DIC and DEA.
parent in the same parental line. two or more children are eligible to (2) Effect of election on other
(3) Exception: More than one death receive the same type of VA benefit beneficiaries when there is more than
benefit is payable when the death of based on the service of a veteran, and one parent in the same parental line. In
both parents in the same parental line at least one of the children is also cases where a child has more than one
occurred prior to June 9, 1960. If both eligible to receive a different type of VA parent in the same parental line, if the
fathers or both mothers died before June benefit based on the service of the same child elects to receive benefits based on
9, 1960, a child who receives DIC for veteran. The types of VA benefits one parent, VA will consider the child’s
one parent may receive death pension referred to in this section are as follows: entitlement for purposes of determining
for the other parent. Unless both fathers the entitlement and rate of other
(1) Improved Pension. survivors of that parent. For benefits
or both mothers died before January 1,
1957, such a child may not receive DIC (2) Dependency and indemnity based on the other parent’s service, VA
or death compensation for the other compensation (DIC). will determine the entitlement and rate
parent. If both parents died before (3) Survivors’ and Dependents’ of the survivors of that parent as if the
January 1, 1957, there is no prohibition Educational Assistance (DEA). child did not exist.
on concurrent receipt of death benefits. (3) Effective date. VA will discontinue
(b) General rule. This paragraph (b) the electing child’s VA death pension or
(4) Surviving child’s right to elect or applies when one of the children is
reelect. If a surviving child is entitled to DIC effective the day preceding the
eligible for more than one type of VA beginning date of the DEA allowance.
benefits because of the death of more
benefit as provided in paragraph (a) of VA will increase payments, pay a
than one parent in the same parental
this section and that child chooses to reduced rate, or discontinue VA death
line, the child has the right to elect or
receive a benefit that is different than pension or DIC to the remaining
reelect one or more times to receive
the type the remaining child receives. beneficiaries effective the beginning
benefits because of the death of either
Except as provided in paragraph (c) of date of the DEA award to the child.
such parent.
this section, VA cannot— (b) Child who is under age 18 or
(5) Benefits that are awarded as a
result of a surviving child’s reelection (1) Increase the rate of payment to the helpless. Generally, a helpless child or
are subject to an offset. VA will award remaining child; or a child who is younger than 18 may
benefits to the electing child according (2) Pay a rate to each remaining child receive VA death pension or DIC at the
to the child’s reelection. However, VA that is greater than the rate payable if all same time as DEA under 38 U.S.C.
will offset the new award by subtracting children were receiving the same type of chapter 35.
the amount of any payments for the VA benefit. (c) Surviving spouse. A surviving
same period which VA previously made spouse may receive VA death pension
(c) Exception to general rule. The or DIC at the same time as DEA under
under the prior award to or based on the
limitation in paragraph (b) of this 38 U.S.C. chapter 35.
existence of that child.
(6) Effect of a surviving child’s section does not apply if the child elects (d) Additional criteria. Provisions
election on the beneficiaries of the other DEA. Unless the child electing DEA is concerning concurrent receipt of DEA
parent in the same parental line. (i) under the age of 18 or helpless, VA will and VA death pension or DIC are set
When a surviving child elects benefits pay benefits to the remaining child as if forth in § 21.3023 of this chapter.
because of the death of one veteran, and the child electing DEA did not exist. See
(Authority: 38 U.S.C. 3562)
a surviving spouse and/or another 38 CFR 21.3023(b) (pertaining to
surviving child are eligible for benefits restrictions on concurrent receipt of §§ 5.765–5.769 [Reserved]
because of the death of another veteran DEA and other VA benefits). [FR Doc. E7–19280 Filed 10–1–07; 8:45 am]
in the same parental line, VA will (Authority: 38 U.S.C. 3512, 3562) BILLING CODE 8320–01–P

Proposed Rule: Compensation, Pension, Burial, and Related Benefits: Payments To Beneficiaries Who Are Eligible For More Than One Benefit

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Proposed Rule: Compensation, Pension, Burial, and Related Benefits: Payments To Beneficiaries Who Are Eligible For More Than One Benefit

Enviado por

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Tuesday,

5.750(a)(1) ................ 3.708(a)(1) and

(OMB) unless OMB waives such review, 5.755 [Reserved]

election. behalf under § 5.741) negotiates the first concurrently.

period. veteran an award of disability not in the custody of a surviving spouse.

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