[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2113]
[[Page Unknown]]
[Federal Register: February 1, 1994]
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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. It is
being published to provide the public, and, in particular, veterans'
benefit claimants and their representatives, with notice of VA's
interpretation 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) 523-3830.
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
which 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.
O.G.C. Precedent 5-93
Question Presented
In determining the surviving spouse's income for improved-pension
purposes, may amounts expended by the survivor in prepayment of
obligations jointly incurred by the survivor and the veteran be
excluded under the ``just-debts'' exclusion in 38 U.S.C. 1503(a)(3)?
Held
In determining a surviving spouse's income for improved-pension
purposes, amounts expended by the survivor in prepayment of secured
obligations jointly incurred by the survivor and the veteran for the
purchase of real or personal property may not be excluded under 38
U.S.C. 1503(a)(3)(A), which provides that amounts paid by a surviving
spouse or child of a deceased veteran for the veteran's ``just-debts''
may be excluded from income.
Effective date: August 5, 1993.
O.G.C. Precedent 6-93
Question Presented
(a) Under what circumstances, if any, may information contained in
an eligibility verification report filed after a beneficiary's death be
considered in determining eligibility for accrued benefits under 38
U.S.C. 5121(a)?
(b) May an award of accrued benefits under 38 U.S.C. 5121(a) be
based on logical inferences from information of record at the date of
the beneficiary's death?
Held
(a) Information contained in an eligibility verification report
submitted after the beneficiary's death may not be considered
``evidence in the file at date of death'' for purposes of an award of
accrued pension benefits under 38 U.S.C. 5121(a).
(b) An award of accrued benefits under 38 U.S.C. 5121(a) may be
based on logical inferences from information in the file at the date of
the beneficiary's death.
Effective date: August 9, 1993.
O.G.C. Precedent 7-93
Question Presented
Does ``service in Vietnam,'' as referred to in 38 CFR 3.313,
include service of a Vietnam era veteran who flew military missions in
Vietnamese airspace, but who never actually landed in Vietnam?
Held
For purposes of 38 CFR 3.313, which authorizes service connection
of non-Hodgkin's lymphoma developing after military service in a
veteran with service in Vietnam during the Vietnam era, the term
``service in Vietnam'' does not include service of a Vietnam era
veteran whose only contact with Vietnam was flying high-altitude
missions in Vietnamese airspace.
Effective date: August 12, 1993.
O.G.C. Precedent 8-93
Question Presented
Do the provisions of 38 U.S.C. 1159 and 38 CFR 3.957 protect an
award of dependency and indemnity compensation (DIC) under which
benefits have been paid for over ten years but which was erroneously
made in light of a rating-board decision that the veteran's death was
not service connected?
Held
The provisions of 38 U.S.C. 1159 and 38 CFR 3.957 do not protect an
award of dependency and indemnity compensation under which benefits
have been paid for over ten years but which was erroneously made in
light of a rating-board decision that the veteran's death was not
service connected.
Effective date: August 25, 1993.
O.G.C. Precedent 9-93
Question Presented
May the term ``definite,'' as used in 38 CFR 4.132, be construed in
a quantitative manner?
Held
The word ``definite,'' as used in 38 CFR 4.132 to describe a 30-
percent degree of disability for purposes of rating claims based on
certain mental disorders, should be construed to mean distinct,
unambiguous, and moderately large in degree, more than moderate but
less than rather large.
Effective date: November 9, 1993.
O.G.C. Precedent 10-93
Question Presented
What legal effect has the provision in 38 CFR 3.326(b) that
evidence will not be required solely to establish permanent and total
disability for improved-pension purposes for veterans 65 years of age
or older?
Held
The provision of 38 CFR 3.326(b), that ``[e]vidence solely to
establish permanent and total disability will not be required in claims
for pension under 38 U.S.C. 1521 if the veteran has attained the age of
65 years,'' is inconsistent with the will of Congress as expressed in
section 8002 of the Omnibus Budget Reconciliation Act of 1990, Public
Law 101-508. That statute eliminated for improved-pension purposes in
claims filed after October 31, 1990, the presumption of permanent and
total disability for persons 65 years of age or older. The referenced
provision of section 3.326(b) is therefore null and of no legal effect.
Effective date: November 24, 1993.
O.G.C. Precedent 11-93
Question Presented
(a) When a claimant has been discharged under honorable conditions
as a conscientious objector, does 38 CFR 3.12(c)(1) bar eligibility for
benefits where the evidence does not establish that the claimant
refused to perform military duty, wear the uniform, or comply with
lawful military orders?
(b) May a period of service be considered ``active, continuous
service'' for purposes of 38 CFR 3.307(a)(1) where the period of
service was interrupted by a thirteen-day period during which the
servicemember was classified as being absent without official leave
(AWOL)?
Held
(a) Under the provision of 38 U.S.C. 5303(a) and 38 CFR 3.12(c)(1),
a claimant who is discharged under honorable conditions as a
conscientious objector is not thereby barred from eligibility for
veterans' benefits unless, in addition to being a conscientious
objector, the claimant also refused to perform military duty or refused
to wear the uniform or otherwise to comply with lawful orders of
competent military authorities.
(b) In order to be eligible for service connection on a presumptive
basis for certain chronic and tropical diseases, regulations at 38 CFR
3.307(a)(1) require that a veteran have had at least ninety days
continuous, active service. Not all unauthorized absences result in a
break in service for purposes of this requirement. An absence of
thirteen days, after which the absentee voluntarily returned to the
absentee's unit, although not creditable for pay or time-in-service
purposes, did not constitute a break in service for purposes of the
``active, continuous service'' requirement imposed by regulations
governing presumptive service connection.
Effective date: December 20, 1993.
O.G.C. Precedent 12-93
Question Presented
Pursuant to the opinion of the Court of Veterans Appeals (CVA) in
In the Matter of the Fee Agreement of William G. Smith in Case Number
91-488 et al., 4 Vet. App. 487 (1990) appeal docketed, No. 94-7017
(Fed. Cir. Nov. 9, 1993) [hereinafter Matter of Smith], is the
Department of Veterans Affairs (VA) required to pay 20 percent of a
claimant's past-due benefit award directly to an attorney in accordance
with an attorney fee agreement when the claimant would not be entitled
to payment of any portion of the past-due benefit award because his
outstanding indebtedness to the United States exceeded the amount of
the past-due benefits awards?
Held
The provisions of 38 U.S.C. 5314(a) require VA to apply the entire
amount of the past-due benefits award to offset the veteran's
outstanding debt to the United States. Therefore, no fund of past-due
benefits payable to the veteran was created, and the veteran's attorney
could not, by assignment under 38 U.S.C. 5604(d), obtain a right to
direct VA payment of attorney fees from the past-due benefits award.
Effective date: December 21, 1993.
By direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 94-2113 Filed 1-31-94; 8:45 am]
BILLING CODE 8320-01-M
