[Federal Register Volume 59, Number 101 (Thursday, May 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12808]
[[Page Unknown]]
[Federal Register: May 26, 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 claims 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
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 1-94
Question Presented
Whether, in computing annual income for improved pension purposes,
the $2,000 exclusion provided by 25 U.S.C. 1407 for certain Native
American tribal per-capita payments applies to the sum of all payments
received during an annual reporting period or applies to each
individual payment received during the reporting period.
Held
For purposes of computing annual income under the improved-pension
statutes, 25 U.S.C. 1407 authorizes the exclusion from a claimant's
income of no more than $2,000 of the aggregate amount received during
the relevant twelve-month period as per capita distributions from a
Native-American tribal trust fund.
Effective date: January 19, 1994.
O.G.C. Precedent 2-94
Question Presented
Does a temporary total relating based on convalescence, under 38
CFR 4.30, satisfy the requirement in 38 U.S.C. 1114(s) of a disability
rated as total for entitlement to special monthly compensation?
Held
The plain and unambiguous language of 38 U.S.C. 1114(s) does not
restrict the nature of total ratings that may serve as a basis of
entitlement to the special rate of disability compensation which
section 1114(s) authorizes. A temporary total rating based on
convalescence, under 38 CFR 4.30, satisfies the requirement in section
1114(s) of a disability rated as total.
Effective date: February 2, 1994.
O.G.C. Precedent 3-94
Question Presented
May the Department of Veterans Affairs (VA) consolidate monthly
benefits of National Service Life Insurance (NSLI) beneficiaries into
one annual payment in order to protect against misuse of benefit
checks?
Held
No statutory authority exists which would allow VA to accumulate
monthly NSLI benefits, other than monthly payments of less than $5 on
policies which matured prior to August 1, 1946, into a single annual
payment.
Effective date: February 8, 1994.
O.G.C. Precedent 4-94
Question Presented
Under what circumstances may withheld pension benefits be paid to
the children of a veteran's surviving spouse (now deceased) where the
surviving spouse's benefits were withheld due to the surviving spouse's
residence in the People's Republic of China?
Held
a. Following the death of a veteran's surviving spouse, payment of
pension benefits withheld from the surviving spouse under 31 U.S.C.
3329 (which bars sending Government checks to certain foreign
countries) and deposited in the special deposit account in the
Department of the Treasury is governed by the provisions of 31 U.S.C.
3330 (c) and (d). Under section 3330(d)(1)(A), payment of such benefits
is precluded where a claim is not filed within one year following the
surviving spouse's death. Further, under 31 U.S.C. 3330(d)(2), payment
may only be made on the basis of a rating or decision existing at the
time of the surviving spouse's death.
b. After the death of the surviving spouse, amounts withheld due to
the surviving spouse's foreign residence and deposited in the Treasury
as miscellaneous receipts pursuant to 31 U.S.C. 3330(b), and amounts
not paid as a result of 38 U.S.C. 5308 (which bars payment of non-
contractual veterans' benefits to aliens located in the territory of an
enemy of the United States), may only be paid in accordance with the
accrued-benefit provisions of 38 U.S.C. 5121. Those provisions require
that an application have been filed within one year of the surviving
spouse's death. They also limit benefits to those to which the
surviving spouse was entitled at death based on existing ratings or
decisions or on evidence in the file on the date of death and only
authorize payment of benefits due and unpaid for a period not to exceed
one year.
Effective date: February 8, 1994.
O.G.C. Precedent 5-94
Questions Presented
How, if at all, are the provisions of 38 U.S.C. 5101(a), 5110(a),
and 5110(g) and 38 CFR 3.114(a) to be applied in establishing an
effective date for service connection of non-Hodgkin's lymphoma (NHL)
based on an original claim made pursuant to 38 CFR 3.313?
Held
An effective date for service connection of non-Hodgkin's lymphoma
under 38 CFR 3.313 may generally be based on the date of receipt by the
Department of Veterans Affairs of an original claim for that benefit
filed on or after August 5, 1964, regardless of whether the claim had
previously been denied, if the claimant was otherwise eligible on the
date of claim. As a practical matter, the provisions of 38 U.S.C.
5110(g) and 38 CFR 3.114(a) permitting payment of retroactive benefits
for periods prior to the date of receipt of a claim under certain
circumstances could not be applicable in determining the effective date
of an award of service connection under Sec. 3.313 because no one could
have met all eligibility requirements for benefits under Sec. 3.313 on
its effective date of August 5, 1964.
Effective date: February 18, 1994.
O.G.C. Precedent 6-94
Questions Presented
a. Prior to March 10, 1976, did Diagnostic Code 5296 contain a
system for rating skull loss under which single skull holes were rated
exclusively by comparison to coin size and multiple skull holes were
rated exclusively based on reference to a specified area in square
inches?
b. If so, what was the rationale for such a system and was it
legally supportable?
Held
a. Former Diagnostic Code 5296, as in effect prior to March 10,
1976, established a bifurcated system of assigning disability ratings
for partial skull loss, under which ratings could be assigned either on
the basis of the aggregate of two or more areas of skull loss or on the
size of a single area of skull loss. Prior to the 1976 revision, this
diagnostic code provided for assignment of a 50-percent rating where:
(1) There were two or more areas of skull loss whose aggregate area
exceeded 2 square inches, or (2) there was a single area of skull loss
which was greater in size than a 50-cent piece. Similarly, the prior
provisions of the diagnostic code provided a 30-percent rating where:
(1) There were two or more areas of skull loss whose aggregate area
exceeded 1 square inch, or (2) there was a single area of skull loss
which was greater in size than a 25-cent piece.
b. The establishment of such rating criteria necessarily implies a
finding that a single area of skull loss greater than a specified size
was considered to represent a greater impairment of earning capacity
than two or more smaller areas having a greater aggregate area. We
cannot conclude that establishment of such criteria was outside the
scope of the Administrator of Veterans' Affairs' discretion under
statutory provisions authorizing establishment of a rating schedule.
Effective date: February 24, 1994.
O.G.C. Precedent 7-94
Question Presented
Does the amount of a Federal Tort Claims Act settlement to be set
off against benefits payable under 38 U.S.C. 1151 include the amount of
attorney fees paid out of the settlement proceeds?
Held
When an individual is awarded a judgment or enters into a
compromise on a Federal Tort Claims Act claim subject to 38 U.S.C.
1151, that individual's future veterans' disability compensation
benefits based on the same disability must be offset by the entire
amount of the judgment or settlement proceeds, including the amount of
any attorney fees paid out of such proceeds.
Effective date: March 1, 1994.
O.G.C. Precedent 8-94
Questions Presented
a. If no claim has been filed under the Vocational Rehabilitation
program authorized by chapter 31, title 38, United States Code, does
Vocational Rehabilitation Service, Veterans Benefits Administration
(VBA) have statutory authority to evaluate a veteran for purposes of
determining the individual's eligibility for compensation benefits
under chapter 11, title 38, United States Code?
b. If such statutory authority exists, is an implementing
regulation also required pursuant to section 501(a)(3), title 38,
United States Code?
c. If Vocational Rehabilitation Service within VBA does not have
statutory authority to provide a rehabilitation assessment for purposes
of the VA compensation benefits program, is there statutory and
regulatory authority for requesting an equivalent VA examination (e.g.,
a fee-basis consultation by a psychologist who specializes in
vocational assessments)?
Held
a. Vocational Rehabilitation evaluations conducted under authority
of chapter 31, title 38, United States Code, may be provided only to
eligible persons applying for benefits under that chapter and only for
the specific purposes of that chapter.
b. The Secretary has authority under section 501(a)(3), title 38,
United States Code, to conduct a ``vocational rehabilitation
assessment'' for purposes of determining the existence of facts to
support an IU rating. Further, 38 U.S.C. 512 authorizes the Secretary
to delegate to any VA component the responsibility for making such
assessments.
c. Under 38 U.S.C. 513, the Secretary theoretically may, subject to
procurement rules, contract with third parties for such assessments if
he deems them to be necessary for proper administration of the
compensation benefits program. However, as noted in the [Office of
General Counsel unpublished decision, dated July 25, 1988], the
Congress has previously considered and failed to enact legislation
mandating use of such assessments. Therefore, Congress may perceive
that administrative implementation of such a requirement by the
Secretary is an attempt to circumvent the legislative will of Congress
by providing for a procedure which the latter, to date, has rejected.
d. If the Secretary elects to exercise all or any of the statutory
authority cited in paragraphs (b) or (c) of this holding, the Secretary
must, as a prerequisite, promulgate appropriate implementing
regulations consistent therewith and with the dictates of due process.
In particular, substantive regulations first would have to be
promulgated detailing the scope, purpose, criteria for, and potential
legal effect of such assessments and should include a delegation of the
task of administering the requirement to a particular agency activity.
e. As to the case which precipitated this inquiry, we believe that
the assessment agreed to by the parties and incorporated in the COVA
remand may be conducted on an ad hoc basis by any agency activity
competent to do so as informally designated by the Secretary. Absent
such a consensual arrangement, however, and without appropriate
regulatory authority, imposing that assessment on a case-by-case basis
would violate due process and would be ultra vires. Moreover, absent a
policy determination on the use of an employability assessment in
deciding IU claims, and absent appropriate regulations, administrative
procedures, and delegation of authority implementing such a policy, we
would recommend against inviting or encouraging even consensual use of
the assessment on an ad hoc basis in future cases. Among other legal
concerns, such action could provoke claims of unequal treatment under
the law.
Effective date: March 25, 1994.
O.G.C. Precedent 9-94
Question Presented
Do decisions of the U.S. Court of Veterans Appeals (CVA or court)
invalidating Department of Veterans Affairs (VA) regulations or
statutory interpretations have retroactive effect?
Held
Decisions of the CVA invalidating VA regulations or statutory
interpretations do not have retroactive effect in relation to prior
``final'' adjudications of claims, but should be given retroactive
effect as they relate to claims still open on direct review.
Effective date: March 25, 1994.
By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 94-12808 Filed 5-25-94; 8:45 am]
BILLING CODE 8320-01-M
