PREC 1-96    Effective Date where Award to a Surviving Spouse results in Termination of an Award based on a deemed Valid Marriage     Citation: Vet. Aff. Op. Gen Couns. Prec. 1-96, VAOPGCPREC 1-96, 1996

QUESTIONS PRESENTED:

a.  Do the provisions of 38 C.F.R. § 3.114(b) apply to cases in which benefits are reduced or terminated as the result of a judicial precedent?

b.  If so, when, in such cases, benefits are awarded to one individual as the surviving spouse of a veteran and discontinued to another individual previously awarded benefits based

on a "deemed valid" marriage to the veteran, is the effective date of the discontinuance of the latter individual's benefits governed by 38 C.F.R. § 3.114(b) or 38 C.F.R. § 3.657(a)?

HELD:

a.  The provisions of 38 U.S.C. § 5112(b)(6) and 38 C.F.R. § 3.114(b), which govern the effective date of a reduction or discontinuance of benefits by reason of a change in law or administrative issue or a change in interpretation of a law or administrative issue, are applicable to cases in which benefits are reduced or terminated by reason of a change in the interpretation of law resulting from a judicial precedent.

b.  When, as the result of such a change in interpretation, an award of benefits is established for one individual as the

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legal surviving spouse of a veteran and discontinued for another individual who had previously received benefits based on a marriage to the veteran deemed valid pursuant to 38 U.S.C. § 103(a), the effective date of the award to the legal surviving spouse is governed by 38 U.S.C. § 5110(a), which provides for establishment of an effective date in accordance with the facts found, but not earlier than the date of receipt of an application for benefits.  The effective date of the discontinuance to the prior payee is governed by 38 U.S.C. § 5112(b)(6) and 38 C.F.R. § 3.114(b).  To the extent that application of 38 C.F.R. § 3.657(a) would, in a particular case, suggest that the prior payee's award be terminated at a date earlier than that provided by 38 U.S.C. § 5112(b)(6), that regulation must be considered superseded by section 5112(b)(6).