[Federal Register Volume 59, Number 233 (Tuesday, December 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29893]
[[Page Unknown]]
[Federal Register: December 6, 1994]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AG74
Dependents' Educational Assistance; Certification
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning eligibility for Dependents'
Educational Assistance (DEA) in cases where it has been established
that a veteran has a permanent and total service-connected disability.
This action conforms the regulations to a decision of the Court of
Veterans Appeals which held that entitlement to DEA may be established
in such cases where the disabilities are of paired organs or
extremities that are treated as service-connected under 38 U.S.C. 1160.
Section 1160 provides that the combination of service-connected
disability of one organ or extremity and nonservice-connected
disability of the respective paired organ or extremity is treated as if
the combination of disabilities is the result of service-connected
disability.
EFFECTIVE DATE: This amendment is effective December 6, 1994.
FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC, telephone
(202) 273-7210.
SUPPLEMENTARY INFORMATION: The Survivors' and Dependents' Educational
Assistance (DEA) Program, established under 38 U.S.C. Chapter 35,
authorizes monetary educational benefits to a qualifying spouse or
child, or surviving spouse or child, of a veteran whose death or
permanent and total disability was due to military service.
38 CFR 3.807 provides that a spouse or child of a veteran has basic
eligibility for Chapter 35 benefits if the veteran has a permanent
total service-connected disability. The surviving spouse or child of a
deceased veteran has basic eligibility for Chapter 35 benefits if a
permanent total service-connected disability was in existence at the
date of the veteran's death or the veteran died of a service-connected
disability.
38 U.S.C. 1160 provides that where a veteran has suffered service-
connected loss of use of an eye, kidney, ear, hand, foot, or lung and
nonservice-connected loss of use of the paired eye, kidney, ear, hand,
foot, or lung, the veteran shall be paid compensation as if the
combination of disabilities were the result of service-connected
disability. 38 CFR 3.383 is the corresponding regulation.
In Precedent Opinion 75-90 dated July 18, 1990, the VA General
Counsel held that Chapter 35 eligibility is not established where a
disability of paired organs treated as if service-connected under 38
U.S.C. 1160 for purposes of disability compensation is evaluated as
permanently and totally disabling. The General Counsel reasoned that
the threshold criterion for DEA eligibility is total service-connected
disability and stated that this criterion is not satisfied where
permanent and total disability is based on the ``as if service-
connected'' status established under 38 U.S.C. 1160.
In a recent decision (Kimberlin v. Brown, No. 91-1972), however,
the United States Court of Veterans Appeals held that Chapter 35
entitlement was established where the veteran was entitled to
compensation for a total disability, permanent in nature, regardless of
whether entitlement was based on loss of use of paired organs treated
as if service-connected under 38 U.S.C. 1160. The Court's opinion
overrules General Counsel Precedent Opinion 75-90 insofar as it relates
to Chapter 35 eligibility.
Currently the regulation does not specifically address whether
Chapter 35 eligibility may be established based on a combination of
disabilities treated as if service-connected under 38 CFR 3.383(a). We
are amending 38 CFR 3.807 to reflect the Court's determination that
such an evaluation may be the basis for Chapter 35 eligibility.
Administrative Procedure Act
This final rule constitutes an interpretative rule. Accordingly,
pursuant to 5 U.S.C. 553, there is a basis for dispensing with prior
notice and comment on this final rule and dispensing with a 30-day
delay of its effective date.
Regulatory Flexibility Act
Because no notice of proposed rulemaking was required in connection
with the adoption of this final rule, no regulatory flexibility
analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
There are no affected Catalog of Federal Domestic Assistance
program numbers.
List of Subjects in 38 CFR Part 3
Administrative practices and procedure, Claims, Individuals with
disabilities, Health care, Pensions, Veterans.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR Part 3 is amended
as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. Section 3.807 is amended, by adding a sentence after the heading
of paragraph (c), and by adding an authority citation at the end of the
section, as follows:
Sec. 3.807 Dependents' educational assistance; certification.
* * * * *
(c) Service connection. For purpose of this section, the term
``service-connected disability'' encompasses combinations of
disabilities of paired organs or extremities treated as if service-
connected under the provisions of Sec. 3.383(a) of this part. * * *
* * * * *
(Authority: 38 U.S.C. 1160, 3501)
[FR Doc. 94-29893 Filed 12-5-94; 8:45 am]
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