[Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)]
[Notices]
[Pages 19808-19810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9734]
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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. These
summaries are 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 regulations 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. As of January 1, 1995, General Counsel precedent
opinions are cited as VAPOGCPREC XX-XX (Number and Year), e.g.,
VAOPGCPREC 1-95.
O.G.C. Precedent 23-94
Question Presented
You have indicated you wish to instruct VA Regional Offices to
adjudicate those pending 1151 claims which can be allowed on the basis
of the U.S. Supreme Court's precedential decision in Brown v. Gardner,
No. 93-1128 (S. Ct., Dec. 12, 1994), and seek advice as to the proper
criteria for so doing.
Held
Pending an opinion from the U.S. Attorney General on the meaning of
a footnote in the U.S. Supreme Court's opinion in Brown v. Gardner,
U.S. Sup. Ct. No. 93-1128 (Dec. 12, 1994), VA may, based on the Supreme
Court's opinion, allow claims for benefits under 38 U.S.C. 1151 if: (1)
an injury resulting from VA treatment caused additional disability or
death and the injury is not a risk of which the veteran was informed
before consent to undergo the treatment, or (2) indicated fault on the
part of VA care-providers or the occurrence of an accident resulted in
additional disability or death. No claim for benefits under 38 U.S.C.
1151 should be denied because no fault on the part of VA care-providers
or the occurrence of an accident was shown.
Effective date: December 27, 1994.
VAOPGCPREC 1-95
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 provision
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.
Effective date: January 4, 1995. [[Page 19809]]
VAOPGCPREC 2-95
Question Presented
Do the provisions of 38 U.S.C. Sec. 5503(b)(1)(A) requiring
withholding of compensation and pension payments to certain incompetent
veterans apply in the case of a veteran who is being provided hospital
care in a non-government facility outside the United States, with the
cost of such care being paid by the Department of Veterans Affairs
(VA)?
Held
The provisions of 38 U.S.C. 5503(b)(1)(A), which require
withholding of compensation and pension payments to certain
institutionalized, incompetent veterans whose estates equal or exceed
$1,500, are applicable to veterans hospitalized in any hospital,
including a private facility outside the United States, when care is
provided at the expense of the United States.
Effective date: January 25, 1995.
VAOPGCPREC 3-95
Question Presented
What is the effect on entitlement to Department of Veterans Affairs
(VA) dependency and indemnity compensation (DIC) during a period of
remarriage, where a remarried spouse obtains an annulment which, under
state law, renders the remarriage void ab initio?
Held
For purposes of entitlement to dependency and indemnity
compensation, a voidable marriage may be considered to have been valid
until the date on which it was declared void by judicial action, even
though under state law the annulment renders the marriage void ab
initio. Thus, although entitlement to dependency and indemnity
compensation may be restored upon annulment of the remarriage of the
surviving spouse of a veteran, the annulment does not give rise to
entitlement for the period of the remarriage.
Effective date: February 1, 1995.
VAOPGCPREC 4-95
Question Presented
Has a veteran, who has been notified that he or she has met the
basic eligibility requirements for a specially adapted housing grant
because he or she has a permanent and total service-connected
disability due to one of the conditions enumerated in 38 U.S.C. 2101
and that it is medically feasible for the veteran to reside in the
proposed housing unit, been ``granted assistance'' for purposes of
Veterans' Mortgage Life Insurance under 38 U.S.C. 2106(a)?
Held
A determination of whether a veteran, who has been notified that he
or she has met the basic eligibility requirements for a specially
adapted housing grant because he or she has a permanent and total
service-connected disability based upon one of the conditions
enumerated in 38 U.S.C. 2101 and that it is medically feasible for the
veteran to reside in the proposed housing unit, has been ``granted
assistance'' for purposes of Veterans' Mortgage Life Insurance (VMLI)
under 38 U.S.C. 2106(a) depends upon whether a specially adapted
housing grant for the veteran was approved by the Department of
Veterans Affairs, which is a factual matter requiring adjudication by
the Veterans Benefits Administration based upon applicable statutory
provisions and regulations and the evidence of record.
Effective date: February 6, 1995.
VAOPGCPREC 5-95
Question Presented
Do the provisions of 38 U.S.C. 110 and 38 C.F.R. 3.951, as
interpreted by the Court of Veterans Appeals (CVA) in Salgado v. Brown,
4 Vet. App. 316 (1993), protect a disability rating established over
twenty years ago, where compensation was discontinued upon the
veteran's reentry into active service shortly after the rating was
established and was not reinstated upon the veteran's discharge from
service?
Held
Under 38 U.S.C. 110, a disability which has been continuously rated
at or above a particular evaluation for twenty or more years for
compensation purposes cannot thereafter be rated at less than that
evaluation, in the absence of fraud. The protection provided by this
statute, however, is dependent upon the disability being ``continuously
rated'' at or above the level in question. Where compensation is
discontinued following reentry into active service in accordance with
the statutory prohibition on payment of compensation for a period in
which an individual receives active-service pay, the continuity of the
rating is interrupted for purposes of the rating-protection provisions
of 38 U.S.C. 110 and the disability cannot be considered to have been
continuously rated during the period in which compensation is
discontinued.
Effective date: February 6, 1995.
VAOPGCPREC 6-95
Question Presented
Whether service consisting solely of attendance at the United
States Military Academy Preparatory School or United States Naval
Academy Preparatory School may be considered ``active duty'' for
purposes of title 38, United States Code.
Held
The analysis of O.G.C. Prec. 18-94 regarding characterization of
service while attending the United States Air force Academy Preparatory
School applies equally to service consisting of attendance at the
United States Military Academy Preparatory School or the United States
Naval Academy Preparatory School. Accordingly, persons transferred to
these schools from active duty remain on active duty status while in
attendance at the schools. For members entering the USMAPS and the
USNAPS from reserve components and the Army National Guard, attendance
at the schools may generally be characterized as active duty for
training. However, in adjudication of individual claims of persons who
enrolled in the USNAPS from the Naval Reserve or Marine Corps Reserve,
it may be necessary to confirm from service records that such persons
attended the USNAPS in the status of reserves called to active duty for
training purposes. In addition, it may be necessary in individual cases
of persons entering the USMAPS and USNAPS from civilian life to examine
the pertinent service records to confirm that such persons entered the
service in reserve status in order to attend the preparatory school.
Effective date: February 10, 1995.
VAOPGCPREC 7-95
Questions Presented
1. In light of 38 U.S.C. 5106, may the National Archives and
Records Administration (NARA) charge a fee for providing the Department
of Veterans Affairs (VA) with copies of documents for its records?
2. Does VA's statutory duty to assist claimants under 38 U.S.C.
5107(a) require that VA pay fees charged by Federal, state, or local
agencies or private sources to obtain copies of records maintained by
those sources?
Held
1. The National Archives and Records Administration may charge a
fee for providing the Department of Veterans Affairs with copies of
records requested in connection with a benefit claim, notwithstanding
38 U.S.C. 5106, which requires that the head of any Federal
[[Page 19810]] agency provide information to VA upon request for the
purpose of determining benefit eligibility.
2. Under 38 U.S.C. 5107(a), which establishes the Secretary of
Veterans Affairs' duty to assist claimants in developing the facts
pertinent to their claims, the Secretary may require claimants to
assume responsibility for payment of any fees associated with obtaining
copies of records maintained by Federal, state, or local agencies or
private sources.
Effective date: March 6, 1995.
VAOPGCPREC 8-95
Questions Presented
1. Must a veteran affirmatively seek a change of program of
education?
2. If the answer to that question is yes, does affirmatively
seeking a change of program of education require that the veteran
submit an application for the change in the form prescribed by the
Secretary?
3. If the answer to the first question is yes, must VA withhold
payments pending receipt of a request for a change of program?
4. If the answer to the first question is yes, does the Secretary
have statutory authority to eliminate this requirement by regulation?
Held
1. An individual must affirmatively seek a determination of his or
her eligibility to make any change of his or her approved program of
education.
2. The request for a determination of eligibility for a change of
program must be made by the individual and, under the applicable
regulations, may be in any form prescribed by VA. The form of the
communication to VA may include the individual's telephonic
confirmation of third-party information and even a third-party document
bearing the individual's signature from which a reasonable inference of
his or her intent to change programs may be discerned.
3. VA may not pay benefits to an individual for pursuit of a
program other than the one currently approved until a request from the
individual for a determination of his or her entitlement to pursue a
particular new program has been received and approved by VA.
4. The Department may not legally implement, by regulation,
procedures to administer determinations of eligibility to pursue a
change of program that do not require the individual seeking approval
of such a change to communicate to VA his or her intent to do so.
Effective date: March 24, 1995.
By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 95-9734 Filed 4-19-95; 8:45 am]
BILLING CODE 8320-01-M
