PREC 1-95 Surviving Spouse's Improved Pensions amount where Veterans' Surviving Child receives Protected Apportionment of § 306 Pensions Citation: Vet. Aff. Op. Gen Couns. Prec. 1-95, VAOPGCPREC 1-95, 1995 QUESTION PRESENTED: a. Is the Department of Veterans Affairs Adjudication Procedure Manual M21-1, part IV, ¶ 20.46b., inconsistent with applicable law and regulation insofar as the manual directs that a surviving spouse's improved-pension award shall reflect the dependency of a child who is not in the surviving spouse's custody, but who receives a protected apportionment of the surviving spouse's pension under section 306 of Public Law No. 95-588? b. If the manual provision is consistent with the law and regulations, must it be applied uniformly regardless of whether it is to the surviving spouse's advantage? HELD: a. The provision in VA Adjudication Procedure Manual M21-1, part IV, ¶ 20.46b., requiring payment of increased improved-pension to a surviving spouse when a veteran's child not in the spouse's custody receives a protected apportionment, is inconsistent with the provisions of 38 U.S.C. § 1541(b) and (c) which authorize payment of the increased rate only when the veteran's child is in the surviving spouse's custody. b. In view of the holding in paragraph a., above, the second question presented is moot. |
