[Federal Register Volume 61, Number 49 (Tuesday, March 12, 1996)]
[Notices]
[Pages 10063-10065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5863]
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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) 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.
VAOPGCPREC 19-95
Question Presented: To what extent does the six-year limitation
period imposed by 31 U.S.C. 3702(b) apply to claims resulting from
nonnegotiation by the payee of checks drawn on veterans' benefit
appropriations? \1\
\1\ The Department of Veterans Affairs' (VA's) appropriation
accounts identified in the request for opinion are 36X0102
(compensation and pension), 36X0137 (readjustment benefits), and
36X4023-25 and 36X4125-30 (loan guaranty).
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Held: The proceeds of uncashed veterans' benefit checks which have
been canceled pursuant to the competitive Equality Banking Act of 1987
(CEBA), Pub. L. No. 100-86, 101 Stat. 552, are not payable unless a
claim for them is made within six years after the claim accrues, as
required by the Barring Act, ch. 788, 54 Stat. 1061 (1940) (codified,
as amended, at 31 U.S.C. 3702(b)), regardless of whether the benefit
checks were drawn on veterans' benefit appropriations. Claims based on
checks which have been lost, stolen, paid on a forged endorsement, or
were never received, and which have been canceled under the CEBA, must
also be presented within the six-year period specified by section
3702(b). Section 3702(b) is not applicable, however, to a claim made to
VA under 38 U.S.C. 5122 by a payee's surviving spouse, child, dependent
parent, or person who bore the expense of the payee's last sickness and
burial, as
[[Page 10064]]
specified in 38 U.S.C. 5121(a), for payment of sums represented by a
check received by the payee but not negotiated before the payee's
death. Instead, 38 CFR 3.1003(a)(1), which states that there is ``no
time limit for filing a claim to obtain the proceeds'' of a check
issued to a payee who died prior to negotiating the check, is
controlling for claims made under section 5122.
Effective Date: July 12, 1995.
VAOPGCPREC 20-95
Question Presented: Under what circumstances must an examiner
review a veteran's medical records prior to conducting a rating
examination for compensation and pension purposes?
Held: Pursuant to the statutory duty under 38 U.S.C. 5107(a) to
assist a claimant in the development of facts pertinent to a claim, and
the decisions of the Court of Veterans Appeals interpreting that duty,
a Department of Veterans Affairs examiner must review a claimant's
prior medical records when such review is necessary to ensure a fully
informed examination or to provide an adequate basis for the examiner's
findings and conclusions. However, such review may not be necessary in
all cases. The determinations as to whether review of prior medical
records is necessary in a particular case depends largely upon the
scope of the examination and the nature of the findings and conclusions
the examiner is requested to provide.
Effective Date: July 14, 1995.
VAOPGCPREC 21-95
Question Presented: Must a recipient of Department of Veterans
Affairs (VA) benefits who has been notified of waiver rights upon
adjudication of an overpayment be notified of such rights again when an
additional overpayment is established based on a separate and distinct
transaction?
Held: A recipient of VA benefits who has been notified of his or
her right to request a waiver of indebtedness arising from an
overpayment of such benefits must again be notified of waiver rights
when an additional overpayment is established based on a separate and
distinct transaction.
Effective Date: August 24, 1995.
VAOPGCPREC 22-95
Questions Presented: a. What is the Department of Veterans Affairs'
(VA's) responsibility concerning the direct payment of attorney fees
from past-due benefits in cases where representation occurs solely
before the Court of Veterans Appeals (CVA) and secondary benefits are
determined to be payable?
b. (1) Must VA notify an attorney who no longer represents a
claimant, and whose fee agreement does not call for direct payment of
fees by VA, that past-due benefits are payable so that the attorney can
pursue collection of a fee?
(2) Must VA pay attorney fees from past-due benefits when the
attorney claiming entitlement to direct payment of fees no longer
represents the claimant?
(3) Must VA pay attorney fees from past-due benefits when the
attorney claiming the fee represented the claimant for only part of the
time the claim was pending before the CVA?
Held: a. In cases where attorney representation is limited to
proceedings before the CVA, VA is authorized to make direct payment of
attorney fees from past-due secondary benefits if the CVA awards the
secondary benefits, the fee agreement covers the secondary benefits,
and the fee agreement complies with the provisions of 38 U.S.C.
5904(d)(3) and 38 CFR 20.609(h) (i)-(iii).
b. (1) Absent the claimant's written consent, VA has no authority
to inform an attorney who is not seeking direct payment of attorney
fees from VA, and no longer represents the claimant, that his or her
former client will be receiving a future payment of past-due benefits.
(2) VA may directly pay attorney fees, to an attorney who
represented a claimant during a CVA appeal, but no longer represents
the claimant, if the statutory and regulatory prerequisites for direct
payment of fees are met and the fee agreement provides for direct
payment.
(3) VA's obligation to pay attorney fees when the attorney fee
agreement was only in place for part of the time the case was pending
before the CVA is dependent upon the terms of the fee agreement and
whether the statutory and regulatory prerequisites for direct payment
of attorney fees have been met.
Effective Date: September 28, 1995.
VAOPGCPREC 23-95
Question Presented: Under what circumstances do residential
rehabilitation services provided to a veteran in a private facility at
Department of Veterans Affairs (VA) expense constitute hospital
treatment or institutional or domiciliary care furnished by the United
States for purposes of the $1,500 estate limitation of 38 U.S.C.
5503(b)(1)(A) and 38 CFR 3.557(b)?
Held: The provisions of 38 U.S.C. 5503(b)(1)(A) and 38 CFR 3.557(b)
generally require withholding of compensation and pension payments from
incompetent veterans with estates in excess of $1,500 who have neither
a spouse nor child and who are being furnished hospital treatment or
institutional or domiciliary care by the United States or any political
subdivision thereof. The terms of the statute and regulation encompass
services provided by a private facility at government expense.
Determination of whether the services provided to a particular veteran
by a private facility fit any of the statutory categories of hospital
treatment or institutional or domiciliary care requires an examination
of the veteran's files to determine the nature and purpose of the
services. With regard to hospital treatment, an assessment should be
made as to whether the facility may be considered an institution the
purpose of which is to provide medical and surgical care to sick,
injured, or infirm persons and whether the veteran received such care
at the institution. In the case of institutional care, a determination
should be made whether the facility may be considered a charitable or
public establishment which had custody of the veteran and which
provided supervision or management of the veteran, having assumed
responsibility for the veteran's well being. Finally, with respect to
domiciliary care, the same factors concerning custody and supervision
would be relevant. In addition, an assessment should be made concerning
the permanence of the veteran's residence at the facility and whether
the medical services provided the veteran were consistent with those
generally associated with a domiciliary facility.
Effective Date: October 5, 1995.
VAOPGCPREC 24-95
Questions Presented: a. Are the provisions of 38 CFR 3.557 and
3.853 applicable in cases where a veteran has alleged but failed to
establish the existence of a spouse or child, or, for section 3.853
purposes, a dependent parent, and is therefore being paid as a veteran
without dependents?
b. Does the failure of a veteran to comply with the Department of
Veterans Affairs' (VA) request pursuant to 38 CFR 3.216 for the social
security number of a spouse, child, or dependent parent upon whom the
veteran relies to avoid the application of 38 CFR Secs. 3.557 or 3.853
require VA to terminate benefit payments to the veteran?
Held: a. Where the other statutory criteria have been met and it
has not been established by satisfactory evidence that a veteran has a
spouse or child, the provisions of 38 U.S.C. 5503(b)(1)(A), as
implemented by 38 CFR 3.557, requiring discontinuance of
[[Page 10065]]
compensation or pension payments to an incompetent veteran having
neither spouse nor child, institutionalized at government expense, and
having an estate of $1,500 or more, are applicable. Where the other
criteria have been met and it has not been established that a veteran
has a spouse, child, or dependent parent, the provisions of former 38
U.S.C. 5505, as implemented by 38 CFR 3.853, requiring discontinuance
of compensation payments to an incompetent veteran having neither
spouse, child, nor dependent parent and having an estate in excess of
$25,000, are applicable.
b. The provisions of 38 U.S.C. 5101(c), as implemented by 38 CFR
3.216, require any person who applies for or is in receipt of
compensation or pension to furnish VA upon request with their social
security number and that of any dependent on whose behalf, or based
upon whom, benefits are sought or received. Failure of a veteran to
supply the social security number of a spouse, child, or, in the case
of former section 5505, dependent parent upon whom the veteran relies
to avoid the application of 38 U.S.C. 5503(b)(1)(A) or former 38 U.S.C.
5505 would be grounds for termination of benefits pursuant to 38 U.S.C.
5101(c)(2), which requires termination of benefits for failure to
comply with a request for a social security number.
Effective Date: October 27, 1995.
VAOPGCPREC 25-95
Question Presented: Does application by the Board of Veterans'
Appeals (BVA or Board) of a subsequently-invalidated regulation
constitute ``obvious error'' and provide a basis for reconsideration of
the Board's decision?
Held: The Board's application of a subsequently-invalidated
regulation in a decision does not constitute ``obvious error'' or
provide a basis for reconsideration of the decision.
Effective Date: December 6, 1995.
VAOPGCPREC 26-95
Question Presented: May the Secretary (1) guarantee a loan; or (2)
approve a Specially Adapted Housing grant for an otherwise eligible
veteran to purchase a residence when title to the property will be held
in a Family Living Trust?
Held: 1. An otherwise qualified veteran may obtain a VA guaranteed
housing loan where the title to the property will be held in a Family
Living Trust that ensures the veteran, or veteran and spouse, an
equitable life estate, provided the lien attaches to any remainder
interest and the trust arrangement is valid under State law and title
is otherwise generally acceptable to lenders, attorneys, title
companies, and informed buyers in the community where the property is
located. The initial decision regarding validity of the lien and trust
arrangement under State law may be made by the lender, subject to VA's
right to adjust the claim under 38 CFR 36.4325 if the lien proves not
to be valid.
2. Due to current regulations, the Family Living Trust arrangement
will not provide the veteran with sufficient ownership interest in the
unit to qualify for a Specially Adapted Housing grant.
3. The Secretary is urged to consider amending the regulations to
specifically address Living Trusts in both the loan and grant programs.
Effective Date: December 15, 1995.
By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 96-5863 Filed 3-11-96; 8:45 am]
BILLING CODE 8320-01-M
