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The Department of Veterans Affairs (VA) proposes to amend its adjudication regulations   concerning certain awards of Dependency and Indemnity Compensation (DIC). Relevant claimants will be eligible to elect a reevaluation of certain previously denied DIC determinations pursuant to changes that establish or modify a presumption of service-connection. Any award following reevaluation may be made retroactive to the date of a previously denied claim as if the establishment or modification of the presumption of service-connection had been in effect on the date of the submission of the original claim. With respect to new or initial awards of DIC pending before VA on or after August 10, 2022, VA proposes to utilize the most advantageous effective date amongst 38 CFR 3.114 and 3.400, to potentially grant an award earlier than August 10, 2022, if applicable. Lastly, as the PACT Act is silent with respect to changes in the accrued or substitution process as it relates to the reevaluation of DIC claims, VA proposes utilizing the regular processes regarding accrued and substitution benefits contained in 38 U.S.C. 5121 and 5121A. The amendments within this proposed rulemaking incorporate legislative updates enacted by the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, or the Honoring our PACT Act of 2022 (Public Law 117-168) (PACT Act) and will bring federal regulations into conformance with the statutory changes.  The proposed amendments in this regulation are in accordance with the President’s priorities to address toxic exposure.

Statement of Need:

The Department of Veteran Affairs has determined the need to amend its regulations, in accordance with 38 U.S.C. 501, to incorporate legislative updates enacted by Section 204 of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 or the Honoring our PACT Act of 2022 (Pub. L. 117-168).

Summary of the Legal Basis:

This amendment to the Dependency and Indemnity Compensation benefit program is authorized by section 204 of Pub. L. 117-168. VA must publish regulations for matters related to benefits as required by 38 U.S.C. 501(d).

Alternatives:

VBA has considered an alternative policy to the proposed rule. VBA could choose not to act at this time and codify a new regulation at a later date. However, this would have a negative effect on VA’s effectiveness in processing benefits claims as the current regulations do not align with the updated statutes. This new adjudication regulation is needed to appropriately determine eligibility to certain VA benefits based on these statutory changes. Therefore, the proposed rule of adding a new adjudication regulation which will provide relevant claimants the ability to elect a reevaluation of certain previously denied DIC determinations pursuant to changes that establish or modify a presumption of service connection to conform with the statutory changes within the PACT Act is VA’s preferred policy approach.

Anticipated Costs and Benefits:

To be determined.

Risks:

None.