[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)]
[Rules and Regulations]
[Pages 68665-68666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33076]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 14
RIN 2900-AI39
Miscellaneous Regulations
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations by removing an unnecessary provision that
states all decisions will conform to the statutes and regulations of
the Department of Veterans Affairs and to the precedent opinions of the
General Counsel. The intended effect of this amendment is to eliminate
unnecessary regulations. This document also makes clarifying changes to
the regulations concerning criteria for determining need for aid and
attendance, and to those dealing with the effect of written precedent
opinions of the General Counsel.
EFFECTIVE DATE: This amendment is effective December 30, 1996.
FOR FURTHER INFORMATION CONTACT: Steve Tomasek, Consultant, Procedures
Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW,
Washington, DC 20420, telephone (202) 273-7256.
SUPPLEMENTARY INFORMATION: 38 CFR 3.101 states that all decisions of
the Department of Veterans Affairs will conform to the statutes and
regulations of the Department of Veterans Affairs and to the precedent
opinions of the General Counsel. That an agency must comply with its
governing statutes and its own regulations, which have the force and
effect of law, is such a fundamental legal concept that a regulation
specifically requiring such compliance is unnecessary.
38 CFR 14.507 indicates that General Counsel opinions designated as
precedential will be considered binding on VA officials as legal
interpretations of general applicability. This document revises 38 CFR
14.507(b) to more clearly state that precedent opinions are binding on
VA officials and employees in subsequent matters involving a legal
issue decided by the precedent opinion. Accordingly, there is no need
to state separately in part 3 that VA decisions must conform to VA
precedent opinions. For the foregoing reasons, this document amends VA
adjudication regulations by removing section 3.101.
This document revises 38 CFR 14.507(b) by adding at the end thereof
a sentence stating that an opinion designated as a precedent is binding
on VA officials and employees in subsequent matters involving a legal
issue decided in the precedent opinion, unless there has been a
material change in a controlling statute or regulation or the opinion
has been overruled or modified by a subsequent precedent opinion or
judicial decision. Also, a minor conforming change is made to 38 CFR
14.507(a). These changes merely clarify the provisions of the current
regulation.
Currently, 38 CFR 14.507(b) authorizes the VA General Counsel to
designate as a ``precedent opinion'' any General Counsel opinion having
significance beyond the particular case or matter at issue in the
opinion. The term ``precedent'' has a well-established legal meaning
indicating an interpretation of law by a competent authority which is
considered binding or persuasive in subsequent cases involving the same
issue of law. Further, section 14.507(b) currently provides that
General Counsel precedent opinions are subject to the provisions of 5
U.S.C. 552(a)(1), which requires Federal agencies to publish in the
Federal Register, among other things, ``interpretations of general
applicability formulated and adopted by the agency.'' Although section
14.507(b) presently indicates that General Counsel precedent opinions
will be generally applicable and binding on VA employees and officials
with respect to matters involving the same question of law, we believe
it would be helpful to state the binding effect of precedent opinions
in clearer terms.
This document also revises the heading of section 3.352 of the
adjudication regulations. Currently the heading reads ``Criteria for
permanent need for aid and attendance and `permanently bedridden.' ''
The heading is revised to read ``Criteria for determining need for aid
and attendance and `permanently bedridden.' '' The revised heading more
accurately indicates that section 3.352 concerns entitlement to
increased pension, compensation, or dependency and indemnity
compensation based on an individual's need for the regular aid and
attendance of another person without regard to whether or not such need
is permanent.
Since this rulemaking merely removes an unnecessary nonsubstantive
provision and makes clarifying changes, the Secretary finds under 5
U.S.C. 553(b) that prior notice and comment are unnecessary and that
there is a basis for dispensing with a 30-day delay of the effective
date.
The Secretary hereby certifies that these regulatory amendments
would not have a significant impact on a
[[Page 68666]]
substantial number of small entities as they are defined in the
Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The amendments
would not directly affect any small entities. Therefore, pursuant to 5
U.S.C. 605(b), these amendments are exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
There are no applicable Catalog of Federal Domestic Assistance
program numbers.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans.
38 CFR Part 14
Administrative practice and procedure, Claims, Courts, Foreign
relations, Government employees, Lawyers, Legal services, Organization
and functions (Government agencies), Reporting and recordkeeping
requirements, Surety bonds, Trusts and trustees, Veterans.
Approved: December 9, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 parts 3 and 14 are
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.
Sec. 3.101 [Removed]
2. Section 3.101 is removed.
3. The section heading of Sec. 3.352 is revised to read as follows:
Sec. 3.352 Criteria for determining need for aid and attendance and
``permanently bedridden.''
PART 14--LEGAL SERVICES, GENERAL COUNSEL
4. The authority citation for part 14 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a),
5502, 5902-5905, unless otherwise noted.
Sec. 14.507 [Amended]
5. In Sec. 14.507, the first sentence of paragraph (a) is amended
by removing the words ``is a change'' and adding, in their place, the
words ``has been a material change'', and paragraph (b) is amended by
adding at the end thereof the words ``An opinion designated as a
precedent opinion is binding on Department officials and employees in
subsequent matters involving a legal issue decided in the precedent
opinion, unless there has been a material change in a controlling
statute or regulation or the opinion has been overruled or modified by
a subsequent precedent opinion or judicial decision.''
[FR Doc. 96-33076 Filed 12-27-96; 8:45 am]
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