[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Notices]
[Pages 63603-63605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31329]
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DEPARTMENT OF VETERANS AFFAIRS
Summary of Precedent Opinions of the General Counsel
AGENCY: Department of Veterans Affairs.
ACTION: Notice.
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SUMMARY: The Department of Veterans Affairs (VA) is publishing a
summary of legal interpretations issued by the Department's General
Counsel involving veterans' benefits under laws administered by VA.
These interpretations are considered precedential by VA and will be
followed by VA officials and employees in future claim matters. The
summary is published to provide the public, and, in particular,
veterans' benefit claimants and their representatives, with notice of
VA's interpretations regarding the legal matter at issue.
FOR FURTHER INFORMATION CONTACT:
Jane L. Lehman, Chief, Law Library, Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420, (202) 273-6558.
SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(9) and
14.507 authorize the Department's General Counsel to issue written
legal opinions having precedential effect in adjudications and appeals
involving veterans' benefits under laws administered by VA. The General
Counsel's interpretations on legal matters, contained in such opinions,
are conclusive as to all VA officials and employees not only in the
matter at issue but also in future adjudications and appeals, in the
absence of a change in controlling statute or regulation or a
superseding written legal opinion of the General Counsel.
VA publishes summaries of such opinions in order to provide the
public with notice of those interpretations of the General Counsel that
must be followed in future benefit matters and to assist veterans'
benefit claimants and their representatives in the prosecution of
benefit claims. The full text of such opinions, with personal
identifiers deleted, may be obtained by contacting the VA official
named above.
[[Page 63604]]
VAOPGCPREC 22-97
Question Presented
May the Department of Veterans Affairs (VA) withhold monthly
benefits from beneficiaries in situations where the payee refuses to
participate in the Electronic Funds Transfer Program?
Held
The Secretary has authority under the DCIA to withhold monthly VA
benefits to a recipient of Federal payments subject to the EFT program
if the recipient has not complied with the statutory EFT requirements
and is not entitled to a waiver of their application.
Effective Date: June 20, 1997.
VAOPGCPREC 23-97
Question Presented
Where a claimant has arthritis and instability of the knee, does 38
CFR 4.71a authorize multiple ratings under diagnostic codes 5003 and
5257?
Held
A claimant who has arthritis and instability of the knee may be
rated separately under diagnostic codes 5003 and 5257.
Effective Date: July 1, 1997.
VAOPGCPREC 24-97
Question Presented
Is a veteran who is receiving compensation pursuant to 38 U.S.C.
1151 due to blindness in both eyes which resulted from the veteran's
hospitalization, medical, or surgical treatment by VA, and not incurred
or aggravated in the line of duty in the active military, naval, or air
service, eligible for a special housing adaptation grant under chapter
21 of title 38, United States Code?
Held
A veteran with a disability that resulted from VA hospitalization
or medical or surgical treatment who has been determined eligible for
compensation ``as if'' such injury were service connected pursuant to
38 U.S.C. 1151 is not eligible for a special housing adaptation grant
as a result of the disability caused by VA medical care.
Effective Date: July 3, 1997.
VAOPGCPREC 25-97
Question Presented
Should military retired pay that is paid directly to a veteran's
ex-spouse by a military finance center pursuant to a divorce decree or
garnishment order be considered income of the veteran for purposes of
determining his or her entitlement to Department of Veterans Affairs
(VA) need-based benefits?
Held
Whether military retired pay paid directly to a veteran's ex-spouse
by a military finance center pursuant to a divorce must be included in
the veteran's annual income for purposes of determining eligibility for
need-based veterans' benefits is dependent upon the property rights of
the parties in the military retired pay, as determined in the pertinent
divorce decree and any related property settlement, interpreted in
light of applicable state law. Where, in a divorce proceeding, military
retired pay is treated as marital property and divided between the
parties to the proceeding, only that portion of the retired pay which
is determined to be the property of the veteran is countable as income
of the veteran for purposes of determining entitlement for need-based
veterans' benefits. Where no such division of property has occurred,
the full amount of such retired pay is attributable to the veteran,
regardless of whether all or a portion of the retired pay is paid
directly to the veteran's ex-spouse pursuant to a voluntary or
involuntary allotment or a garnishment order.
Effective Date: July 16, 1997.
VAOPGCPREC 26-97
Question Presented
Was the addition of a diagnosis of post-traumatic stress disorder
(PTSD) to the rating schedule, effective April 11, 1980, ``a
liberalizing law, or a liberalizing [Department of Veterans Affairs
(VA)] issue'' of 38 CFR 3.114(a)?
Held
The addition of PTSD as a diagnostic entity in the schedule for
rating mental disorders was a ``liberalizing VA issue'' for purposes of
38 CFR 3.114(a). However, an effective date prior to the date of claim
cannot be assigned under section 3.114(a) unless the claimant met all
eligibility criteria for the liberalized benefit on April 11, 1980, the
effective date of the regulatory amendment adding the diagnostic code
for PTSD, and such eligibility existed continuously from that date to
the date of claim or administrative determination of entitlement.
Effective Date: July 16, 1997.
VAOPGCPREC 27-97
Question Presented
Whether service on a naval vessel in the waters off the shore of
Vietnam constitutes service in the Republic of Vietnam for purposes of
38 U.S.C. 101(29)(A), which defines the Vietnam era as the period
beginning on February 28, 1961, and ending on May 7, 1975, in the case
of a veteran who served in the Republic of Vietnam during that period.
Held
Service on a deep-water naval vessel in waters off the shore of the
Republic of Vietnam does not constitute service in the Republic of
Vietnam for purposes of 38 U.S.C. 101(29)(A), as added by section 505
of the Veterans' Benefits Improvements Act of 1996, which provides that
the term ``Vietnam era'' means the period beginning on February 28,
1961, and ending on May 7, 1975, in the case of a veteran who served in
the Republic of Vietnam during that period.
Effective Date: July 23, 1997
VAOPGCPREC 28-97
Question Presented
Whether a person insured under Service Disabled Veterans'
Insurance, who does not receive a waiver of premiums pursuant to 38
U.S.C. 1912 because the insured died prior to the continuance of total
disability for six consecutive months, is nonetheless eligible for
supplemental Service Disabled Veterans' pursuant to 38 U.S.C. 1922A.
Held
A person insured under Service Disabled Veterans' Insurance, who
does not qualify for a waiver of premiums pursuant to 38 U.S.C. 1912
because the insured died prior to the continuance of total disability
for six months, is not eligible for supplemental Service Disabled
Veterans Insurance pursuant to 38 U.S.C. 1922A.
VAOPGCPREC 29-97
Question Presented
Does 38 C.F.R. 3.105(e) apply to cases subject to the special
settlement review under the provisions of the October 15, 1993,
Stipulation and Order in Fernando Giusti Bravo, et al v. U.S.
Department of Veterans Affairs, et al., where there is no reduction of
a service-connected disability rating which results in reduction or
discontinuance of compensation payments currently being made?
Held
38 C.F.R. 3.105(e) applies to cases subject to the special
settlement review under the provisions of the October 15, 1993,
Stipulation and Order in Fernando Giusti Bravo, et al. v. U.S.
[[Page 63605]]
Department of Veterans Affairs, et al. only where there is a reduction
of service-connected disability rating which results in reduction or
discontinuance of compensation payments currently being made. Thus, the
provisions of section 3.105(e) which require VA to provide a proposed
rating action and a 60-day pretermination notice are inapplicable where
there is no reduction of a service-connected disability rating which
results in reduction or discontinuance of compensation payments
currently being made.
Effective Date: August 7, 1997.
VAOPGCPREC 30-97
Question Presented
What level of special monthly compensation (SMC) should be awarded
to a claimant with nonservice-connected paraplegia who is entitled to
compensation under 38 U.S.C. 1151 for disarticulation of the hips?
Held
Regardless of preexisting paraplegia, SMC is payable at the rate
prescribed in 38 U.S.C. 1114(n) to a claimant who is entitled to
compensation for bilateral disarticulation of the hips under 38 U.S.C.
1151.
Effective Date: August 29, 1997.
VAOPGCPREC 31-97
Question Presented
If the Board of Veterans' Appeals concludes upon reconsideration
that the Department of Veterans Affairs Regional Office erred in
determining the effective date of a reduction in compensation pursuant
to 38 U.S.C. 5112(6) and 38 CFR 3.105(e), does that error render the
decision reducing the rating void ab initio, requiring reinstatement of
the prior rating?
Held
The reduction of a disability rating, if otherwise supportable, is
not rendered void ab initio by virtue of error in the assignment of the
effective date for it.
Effective Date: August 29, 1997.
VAOPGCPREC 32-97
Question Presented
When a claimant has service-connected, partial hearing loss in only
one ear, should the hearing in the other ear be considered normal for
purposes of rating the service-connected hearing loss?
Held
If a claimant has service-connected hearing loss in one ear and
nonservice-connected hearing loss in the other ear, the hearing in the
ear having nonservice-connected loss should be considered normal for
purposes of computing the service-connected disability rating, unless
the claimant is totally deaf in both ears.
Effective Date: August 29, 1997.
VAOPGCPREC 33-97
Question Presented
Are assets which are placed in an irrevocable special needs trust
includable in the claimant's net worth for purposes of determining
eligibility for improved pension?
Held
Assets transferred by a legally competent claimant, or by the
fiduciary of a leagally incompetent one, to an irrevocable ``living
trust'' or an estate-planning vehicle of the same nature designed to
preserve estate assets by restricting trust expenditures to the
claimant's ``special needs,'' while maximizing the use of governmental
resources in the care and maintenance of the claimant, should be
considered in calculating the claimant's net worth for improved-pension
purposes.
Effective Date: August 29, 1997.
VAOPGCPREC 34-97
Question Presented
Does 38 U.S.C. 3104(b) or any other statute or regulation, e.g.,
Department of Labor Rehabilitation Act of 1973 and associated
regulations, either require or preclude VA from assisting appellant in
purchasing a computer and related materials for recreational
activities?
Held
1. No statute or regulation, including section 702 of the
Rehabilitation Act of 1973 and its associated regulations, either
specifically directs VA to authorize or precludes VA from authorizing
services and assistance of a recreational nature as a component of an
eligible veteran's program of independent living services and
assistance under 38 U.S.C. 3120.
2. VA has the authority, and responsibility, to provide all
services and assistance deemed necessary on the facts of the particular
case to enable an eligible veteran participating in such a program to
live and function independently in his or her family and community
without, or with a reduced level of, the services of others. This
includes the authority to approve, when appropriate, services and
assistance that are in whole or part recreational in character when the
services are found to be needed to enable or enhance the veteran's
ability to engage in family and community activities integral to the
veteran's achieving his or her independent living program goals.
Effective Date: November 5, 1997.
By the Direction of the Secretary:
Robert E. Coy,
Acting General Counsel.
[FR Doc. 97-31329 Filed 11-28-97; 8:45 am]
BILLING CODE 8320-01-P-M
