[Federal Register Volume 63, Number 109 (Monday, June 8, 1998)]
[Notices]
[Pages 31262-31264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15116]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
Summary of Precedent Opinions of the General Counsel
AGENCY: Department of Veterans Affairs.
ACTION: Notice.
-----------------------------------------------------------------------
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 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 35-97
Question Presented
Does the failure of the Department of Veterans Affairs (VA) to
render a timely decision regarding entitlement to service-connected
burial benefits following a veteran's death in 1977 provide a basis for
awarding dependency and indemnity compensation (DIC) retroactive to the
date of death?
Held
The failure of the Department of Veterans Affairs to render a
timely decision regarding entitlement to service-connected burial
benefits following a veteran's death may not provide a basis for
awarding retroactive payment of dependency and indemnity compensation
(DIC) in a manner inconsistent with the express requirements of 38
U.S.C. Sec. 5110, except insofar as the Secretary may order such
benefits pursuant to his equitable-relief authority under 38 U.S.C.
Sec. 503(a). Pursuant to 38 U.S.C. Sec. 5110(a) and (d)(1), an award of
DIC may be made effective from the month of death only if the claimant
filed an application for DIC within one year after the date of death,
or filed an informal claim for DIC within such period, followed by a
timely formal application for DIC which may, under 38 C.F.R.
Sec. 3.155(a), be deemed to have been filed within one year after the
date of death.
Effective Date: December 9, 1997.
VAOPGCPREC 36-97
Questions Presented
a. Whether Diagnostic Code (DC) 5293, intervertebral disc syndrome
(IDS), is based upon loss of range of motion, and therefore whether 38
C.F.R. Secs. 4.40 and 4.45 are applicable in determining the extent of
a veteran's disability due to IDS.
b. Whether 38 C.F.R. Secs. 4.40 and 4.45 must be considered where a
veteran receives less than the maximum schedular rating under DC 5293,
but that rating corresponds to the maximum schedular rating under
another diagnostic code pertaining to limitation of motion.
c. Whether 38 C.F.R. Sec. 3.321(b) must be considered when a
veteran receives less than the maximum rating under DC 5293,
irrespective of whether 38 C.F.R. Secs. 4.40 and 4.45 must be applied
in such a case.
Held
1. Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS),
involves loss of range of motion because the nerve defects and
resulting pain associated with injury to the sciatic nerve may cause
limitation of motion of the cervical, thoracic, or lumbar vertebrae.
Therefore, pursuant to Johnson v. Brown, Vet. App. 7 (1996), 38 C.F.R.
Secs. 4.40 and 4.45 must be considered when a disability is evaluated
under this diagnostic code.
2. When a veteran has received less than the maximum evaluation
under DC 5293 based upon symptomatology which includes limitation of
motion, consideration must be given to the extent of the disability
under 38 C.F.R. Secs. 4.40 and 4.45, even though the rating corresponds
to the maximum rating under another diagnostic code pertaining to
limitation motion.
3. The BVA must address entitlement to an extraschedular rating
under 38 CFR 3.321(b)(1) if there is evidence of ``exceptional or
unusual'' circumstances indicating that the rating schedule, including
38 CFR 4.40, 4.45, and 4.71a, may be inadequate to compensate for the
average impairment of earning capacity due to IDS, regardless of the
fact that a veteran may have received the maximum schedular rating
under a diagnostic code based upon limitation of motion.
Effective Date: December 12, 1997.
VAOPGCPREC 37-97
Question Presented
Are attorney fees payable in cases in which the decision of the
Board of Veterans' Appeals was on the issue of whether a claimant had
submitted new and material evidence sufficient to reopen a claim?
Held
In a case where BVA has denied reopening of a claim for service
connection based on failure to submit new and material evidence and
that determination is reversed by CVA and service connection is
ultimately allowed, attorney fees may be paid. In a claim where BVA has
determined that new and material evidence has been submitted and has
remanded the claim to the AOJ, attorney fees may not be paid because a
final decision within the meaning of 38 U.S.C. 5904(c)(1) is lacking.
Effective Date: December 16, 1997.
[[Page 31263]]
VAOPGCPREC 38-97
Question Presented
Can the misapplication of, or failure to apply, a statutory or
regulatory evidentiary presumption in a prior final decision constitute
new and material evidence for purposes of reopening a previously denied
claim pursuant to 38 U.S.C. 5108?
Held
The misapplication of, or failure to apply, a statutory or
regulatory evidentiary presumption in a prior final decision cannot, in
itself, constitute ``new and material evidence'' within the meaning of
38 U.S.C. 5108 for purposes of reopening a claim.
Effective Date: December 17, 1997.
VAOPGCPREC 39-97
Question Presented
Are reparations paid to a veteran's spouse, a victim of Nazi
persecution, by the Federal Republic of Germany (FRG) countable as
income for purposes of Department of Veterans Affairs (VA) pension
programs and parents' dependency and indemnity compensation (DIC)?
Held
Reparations paid by the Federal Republic of Germany to individuals
who were victims of Nazi persecution are not countable as income or net
worth for purposes of determining eligibility for section 306, old law,
and improved pension, and parents' dependency and indemnity
compensation.
Date: December 22, 1997.
VAOPGCPREC 40-97
Question Presented
a. Do the amendments to 38 U.S.C. 1151 made by section 422(a) of
Pub. L. No. 104-204 apply in claims filed before October 1, 1996, which
are still pending on October 1, 1997?
b. Do those amendments apply in claims filed on or after October 1,
1996, but before October 1, 1997, which are still pending on the latter
date?
Held
All claims for benefits under 38 U.S.C. 1151, which governs
benefits for persons disabled by treatment or vocational
rehabilitation, filed before October 1, 1997, must be adjudicated under
the provisions of section 1151 as they existed prior to that date.
Effective Date: December 31, 1997.
VAOPGCPREC 1-98
Question Presented
Does 38 U.S.C. 7111, which Pub. L. No. 105-111 added to title 38,
apply to claims pending on the date Pub. L. No. 105-111 was enacted?
Held
Section 7111 of title 38, United States Code, as added by Pub. L.
No. 105-111, under which a claimant is entitled to a Board of Veterans
Appeals decision on the merits on a request for revision of a prior
Board decision on the grounds of clear and unmistakable error, applies
to claims pending on the date Pub. L. No. 105-111 was enacted.
Effective Date: January 13, 1998.
VAOPGCPREC 2-98
Questions Presented
a. For claims filed after October 31, 1990, based on service
connection of disability or death resulting from a veteran's own
alcohol or drug abuse, does section 8052 of the Omnibus Budget
Reconciliation Act of 1990 preclude entitlement to the following
benefits:
(1) Dependents' educational assistance under 38 U.S.C. ch. 35?
(2) Burial benefits?
(3) Accrued benefits?
(4) Surviving spouses' loan guaranty benefits under 38 C.F.R.
Sec. 3.805?
(5) The special allowance under 38 U.S.C. Sec. 1312?
(6) Medical care under the Department of Veterans Affairs Civilian
Health and Medical Program (CHAMPVA)?
b. If, based on a claim filed on or before October 31, 1990,
service connection has been established for a disability that resulted
from a veteran's own alcohol or drug abuse, what effect does section
8052 of the Omnibus Budget Reconciliation Act of 1990 have on a claim
for an increased rating filed after October 31, 1990?
Held
a. With respect to claims filed after October 31, 1990, 38 U.S.C.
Sec. 105(a), as amended by section 8052(a)(1) of the Omnibus Budget
Reconciliation Act of 1990 and implemented by 38 C.F.R. 3.1(m),
precludes, for purposes of all VA benefits, a finding that an injury or
disease that was a result of a person's own alcohol or drug abuse was
incurred or aggravated in line of duty. Thus, for purposes of all VA
benefits, eligibility for which requires a service-connected disability
or death, section 105(a) precludes service connection of a disability
resulting from alcohol or drug abuse on the basis of the disability's
incurrence or aggravation in service or of a death resulting from such
a disability. However, for purposes of all such VA benefits other than
disability compensation, the amendments made by section 8052 do not
preclude eligibility based on a disability, or death resulting from
such a disability, secondarily service connected under 38 C.F.R.
Sec. 3.310(a) as proximately due to or the result of a service-
connected disease or injury.
b. Claims for increase filed after October 31, 1990, are subject to
the amendments made by section 8052(a) of the Omnibus Budget
Reconciliation Act of 1990. If, based on a claim filed on or before
October 31, 1990, service connection has been established for a
disability that resulted from a veteran's own alcohol or drug abuse, 38
U.S.C. Secs. 1110 and 1131, as amended by section 8052(a), prohibit the
payment of any increase in compensation for that disability, based on a
claim for increase filed after October 31, 1990, including, for
example, a claim for an increased rating or a claim for increase based
on acquisition of a dependent. Sections 1110 and 1131 do not, however,
prohibit continuation or reduction, in accordance with the facts, of an
award of compensation for the disability established on the basis of a
claim filed on or before that date. Further, sections 1110 and 1131 do
not prohibit payment of an increase in compensation, such as a cost-of-
living adjustment; that would become effective without the filing of a
claim.
Effective Date: February 10, 1998
VAOPGCPREC 3-98
Question Presented
Whether a person who is between 18 and 23 years of age and is
pursuing a high school education in a home-school program is pursuing a
course of instruction at an educational institution for purposes of 38
U.S.C. Sec. 101(4)(A)(iii).
Held
A home-school program does not constitute an institution within the
meaning of 38 U.S.C. Sec. 101(4)(A)(iii) and 104(a) because the program
terminates when the child completes his or her course of instruction or
withdraws, does not have an ongoing enrollment, and is operated for the
sole purpose of serving the needs of a particular student. Therefore, a
person who is between 18 and 23 years of age and is being educated in a
home-school program is not a child for purposes of 38 U.S.C.
Sec. 101(4)(A)(iii) because he or she is not pursuing a course of
instruction at an
[[Page 31264]]
educational institution. Effective Date: March 19, 1998.
VAOPGCPREC 4-98
Question Presented
Does 38 U.S.C. Sec. 2305 have any application in claims for burial
benefits involving veterans who served in the organized military forces
of the Commonwealth of the Philippines while such forces were in the
service of the United States Armed Forces during World War II?
Held
The saving provision currently codified at 38 U.S.C. Sec. 2305
preserved potential eligibility for burial benefits under chapter 23 of
title 28, United States Code, for individuals who could have qualified
for those benefits under ``the laws in effect on December 31, 1957.''
The statute governing benefits eligibility based upon service in the
Philippine Commonwealth Army in World War II that was in effect on that
date did not confer potential eligibility for burial benefits for
individuals with such service. Consequently, section 2305 has no
application in claims for burial benefits based on service in the
Philippine Commonwealth Army during World War II. Effective Date: April
1, 1998
VAOPGCPREC 5-98
Questions Presented
a. What is the proper disposition of funds derived from Department
of Veterans Affairs (VA) benefits and held by a legal custodian, when a
beneficiary dies intestate but with known heirs?
b. Does VA have a legal duty to supervise estate assets derived
from VA benefits and in the hands of a legal custodian, after the death
of the beneficiary?
c. Does VA have authority to distribute a deceased beneficiary's
estate assets, derived from VA benefit payments, and, if so, how should
the distribution be made?
Held
When a veteran or other VA beneficiary dies without a will but with
known heirs, VA-derived funds held by a legal custodian should be
distributed by an appropriate estate administrator in accordance with
applicable state law governing intestate succession. VA is not
authorized to recover such funds and distribute them to the
beneficiary's heirs. Generally, VA is authorized to supervise the
estate only to the extent necessary to assure that the fiduciary
fulfilled his or her responsibilities to the beneficiary and to assure
preservation of assets which may be reclaimed by the Government
pursuant to 38 U.S.C. Sec. 5502(e).
Effective Date: April 2, 1998.
VAOPGCPREC 6-98
Question Presented
If a veteran both challenges the validity of a debt assessed by the
Department of Veterans Affairs (VA) and, in the alternative seeks
waiver of such debt, must VA first fully adjudicate the debt validity
issue, and the veteran exhaust all appeals on that issue, before waiver
may be considered?
Held
When a veteran both challenges the validity of a debt and seeks
waiver of the debt, the Regional Office must first fully review the
debt's validity and, if the office believes the debt to be valid,
prepare a written decision fully justifying the validity of the debt.
At that point, the veteran's request for waiver should be referred to
the Committee on Waivers and Compromises. If waiver is denied, the
veteran must be informed of his or her right to appeal both decisions
to the Board of Veterans Appeals.
Effective Date: April 24, 1998
VAOPGCPREC 7-98
Questions Presented:
a. Where eligibility under the Restored Entitlement Program for
Survivors (REPS) is based on service connection established under a
Department of Veterans Affairs (VA) regulation establishing a
presumption of service connection for a disease, is the effective date
of the award of REPS benefits limited by the effective date of the
regulation establishing the presumption?
b. If, pursuant to the Nehmer stipulation, an award of dependency
and indemnity compensation (DIC) is made effective prior to the
effective date of the VA regulation establishing presumptive service
connection for the cause of death, is the effective date of an award of
REPS benefits also governed by the Nehmer stipulation?
Held
In the case of a member or former member of the Armed Forces who
died on active duty prior to August 13, 1981, or who died from a
service-connected disability which was incurred or aggravated in
service before such date, the Department of Veterans Affairs (VA) is
authorized, under Pub. L. No. 97-377, Sec. 156, 96 Stat. 1830, 1920
(1982), and 38 C.F.R. Sec. 3.812, to award benefits under the Restored
Entitlement Program for Survivors (REPS) to the member or former
member's surviving spouse or child for all periods in which such spouse
or child meet the eligibility requirements for such benefits. If a
claimant meets the statutory requirements governing eligibility for
REPS benefits, the fact that service connection for a former member's
death has been established pursuant to regulatory presumptions of
service connection which became effective subsequent to the initial
period of eligibility does not limit VA's authority to award REPS
benefits retroactive for all periods of eligibility.
Effective Date: May 4, 1998.
John H. Thompson,
Acting General Counsel.
[FR Doc. 98-15116 Filed 6-5-98; 8:45 am]
BILLING CODE 8320-01-M
