[Federal Register Volume 62, Number 135 (Tuesday, July 15, 1997)]
[Notices]
[Pages 37952-37955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18495]
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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. 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
[[Page 37953]]
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 11-97
Questions Presented
a. Do any of the amendments to the Department of Veterans Affairs
(VA) Schedule for Rating Disabilities pertaining to ratings for mental
disorders, which became effective November 7, 1996, contain
liberalizing criteria?
b. Must the Board of Veterans' Appeals (Board) remand claims
involving ratings for mental disorders which were pending on November
7, 1996, to permit the agency of original jurisdiction (AOJ) to
consider the effect of the amended regulations in the first instance?
Held
a. Questions as to whether any of the recent amendments to VA's
rating schedule pertaining to mental disorders are more beneficial to
claimants than the previously-existing provisions must be resolved in
individual cases where those questions are presented. The determination
as to whether a particular amended regulation is more favorable to a
claimant than the previously-existing regulation may depend upon the
facts of the particular case.
b. Where a regulation is amended during the pendency of an appeal
to the Board of Veterans' Appeals (Board), the Board must first
determine whether the amended regulation is more favorable to the
claimant than the prior regulation, and, if it is, the Board must apply
the more favorable provision. Under VAOPGCPREC 16-92 (O.G.C. Prec. 16-
92) and Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), the Board may
consider regulations not considered by the agency of original
jurisdiction if the claimant will not be prejudiced by the Board's
action in applying those regulations in the first instance. With
respect to claims pending on November 7, 1996, which involve ratings
for mental disorders, the Board may determine whether the amended
regulations, which became effective on that date, are more favorable to
the claimant and may apply the more favorable regulation, unless the
claimant will be prejudiced by the Board's actions in addressing those
questions in the first instance. The Board is free to adopt a rule
requiring notice to a claimant when a pertinent change in a statute or
regulation occurs prior to a final Board decision on a claim and
permitting the claimant to waive the opportunity for a remand to the
agency of original jurisdiction for initial consideration of the new
statute or regulation.
Effective Date: March 25, 1997.
VAOPGCPREC 12-97
Question Presented
a. Whether an attorney representing a successful claimant before
the Department of Veterans Affairs (VA) may collect attorney fees under
the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d), and
from past-due benefits under 38 U.S.C. Sec. 5904(d), without refunding
to the claimant the amount of the smaller fee?
b. If an attorney may not collect both an EAJA fee and a section
5904(d) fee without refunding to the claimant the smaller fee, what
action must the Board of Veterans' Appeals (Board) take where the
attorney is otherwise eligible for attorney fees under both the EAJA
and 38 U.S.C. Sec. 5904(d)?
c. Where a case has been remanded or reversed by the United States
Court of Veterans Appeals (CVA), must the Board, as a matter of
practice, in making its determination as to either payment of attorney
fees from past-due benefits under 38 U.S.C. Sec. 5904(d) or
reasonableness of fee under 38 U.S.C. Sec. 5904(c)(2) determine whether
the attorney has received fees under the EAJA?
Held
a. The claimant's attorney is permitted to seek recovery of
attorney fees under both 38 U.S.C. Sec. 5904 and 28 U.S.C. Sec. 2412.
Section 506(c) of the Federal Courts Administration Act of 1992
expressly provides that, where the claimant's attorney receives fees
for the same work under both 38 U.S.C. Sec. 5904(d) and 28 U.S.C.
Sec. 2412, the claimant's attorney must refund to the claimant the
amount of the smaller fee. The attorney may keep the larger of the fees
recovered, but must return the amount of the smaller fee to the
claimant.
b. There is no authority for the Board to take any action, such as
offset of the amount of the EAJA fees, to ensure that the attorney
fulfills his responsibility to refund the smaller fee to the claimant.
c. Where the case has been remanded or reversed by the CVA, the
Board does not have to first determine whether the attorney has
received fees under the EAJA to determine whether attorney fees are
payable directly by VA from past-due benefits under section 5904(d).
Where the attorney fee agreement does not require direct payment by VA
from past-due benefits under section 5904(d), the Board's review of the
agreement under 38 U.S.C. Sec. 5904(c)(2), to determine whether the fee
is excessive or unreasonable, may require the Board to determine
whether the attorney has received fees under the EAJA and if so, the
impact of the EAJA fees on the reasonableness of the agreed-upon fee.
Thus, where a case has been remanded or reversed by the CVA, the Board,
in making its determination as to whether the attorney fee is excessive
or unreasonable under 38 U.S.C. Sec. 5904(c)(2), must determine on a
case-by-case basis the impact of any attorney fees received under the
EAJA.
Effective Date: March 26, 1997.
VAOPGCPREC 13-97
Question Presented
May a total disability rating based on individual unemployability
be reduced based solely on a veteran's removal from the ``work possible
environment''?
Held
There is no statutory or regulatory authority for VA to reduce a
total disability rating based on individual unemployability, as
authorized by 38 C.F.R. Secs. 3.340(a), 3.341(a), 4.16(a), based solely
on a veteran's removal from a ``work possible environment.'' Such
reduction of a total disability rating based on individual
unemployability would be inconsistent with the requirement of 38 C.F.R.
Sec. 3.343(c)(1) that, in order to reduce such a rating, actual
employability be established by clear and convincing evidence.
Effective Date: April 7, 1997.
VAOPGCPREC 14-97
Question Presented
May a work related injury sustained by a veteran who is receiving
employment services as part of a ``vocational rehabilitation program''
under chapter 31 of title 38, United States Code, be considered the
result of ``pursuit of a course of vocational rehabilitation under
chapter 31,'' for purposes of entitlement to compensation under 38
U.S.C. Sec. 1151?
Held
An individual participating in a chapter 31 ``vocational
rehabilitation program'' (as defined in 38 U.S.C. Sec. 3101(9)) is not,
solely by virtue of that status, considered in ``pursuit of a course of
vocational rehabilitation'' for purposes of 38 U.S.C. Sec. 1151. The
intent of the section 1151 provisions pertinent
[[Page 37954]]
to this matter is to provide compensation for injuries sustained only
as a result of pursuing vocational rehabilitation training to achieve
employability, not as a result of engaging in post-training employment.
Thus, a chapter 31 ``vocational rehabilitation program'' participant
who is receiving only a period of employment services while engaged in
post-training employment is not pursuing ``a course of vocational
rehabilitation'' within the meaning of section 1151 so as to qualify
for disability compensation benefits under that section.
Effective Date: April 7, 1997.
VAOPGCPREC 15-97
Questions Presented
a. Are interest payments received from bonds issued by Menominee
Enterprises, Inc. countable as income for purposes of determining
entitlement to improved pension?
b. Are interest payments received from such bonds countable as
income under the section 306 pension program, the old law pension
program, or the parents' dependency and indemnity compensation program?
Held
a. Interest payments received by individuals based upon their
status as holders of bonds issued by Menominee Enterprises, Inc., a
corporation formed upon termination of Federal supervision of the
Menominee Indian Tribe, must be included in annual income for purposes
of determining eligibility for improved pension.
b. Interest payments received by individuals based on their status
as holders of bonds issued by Menominee Enterprises, Inc. are likewise
countable as income for purposes of determining entitlement under the
section 306 pension, old law pension, and parents' dependency and
indemnity compensation programs.
Effective Date: April 10, 1997.
VAOPGCPREC 16-97
Questions Presented
a. Whether, under Section 502 of the Veterans' Benefits
Improvements Act of 1996, which added section 38 U.S.C. Sec. 5313A, the
period for which the clothing allowance of certain incarcerated
veterans is to be reduced begins on the first day of incarceration or
on the sixty-first day of incarceration.
b. Whether the amendment made to 38 U.S.C. Sec. 5121(a) by section
507 of the Veterans' Benefits Improvements Act of 1996, which increased
from one year to two years the period for which accrued benefits may be
paid, applies only in claims involving deaths which occur on or after
October 9, 1996, the date of enactment of the amendment.
Held
a. Section 5313A of title 38, United States Code, as added by
section 502 of the Veterans' Benefits Improvements Act of 1996,
requires that the Department of Veterans Affairs reduce the annual
clothing allowance payable under 38 U.S.C. Sec. 1162 to certain
incarcerated veterans by 1/365th for each day on which the veteran was
incarcerated during the twelve-month period preceding the date on which
the payment of the allowance would be due, beginning with the sixty-
first day of the period of incarceration.
b. Section 5121(a) of title 38, United States Code, as amended by
section 507 of the Veterans' Benefits Improvements Act of 1996, which
authorizes payment of accrued benefits for a period of two years prior
to the death of an individual entitled to periodic monetary benefits at
death under existing ratings or decisions or based on evidence on file
at the date of death, is applicable in claims for accrued benefits
based on deaths which occurred prior to the October 9, 1996, date of
enactment of the amending statute which were not finally decided prior
to that date.
Effective Date: April 17, 1997.
VAOPGCPREC 17-97
Questions Presented
a. Under what circumstances may a veteran attending school as part
of a vocational rehabilitation program under chapter 31 of title 38,
United States Code, be paid directly for ``tuition, fees, and
miscellaneous expenses, etc.''?
b. Can such payment for ``tuition, fees, and miscellaneous
expenses, etc.'' be withheld to satisfy an existing account receivable
for overpayment of subsistence allowance under the chapter 31 program?
Held
1. When VA, in its discretion, determines the facts and equities of
the individual circumstances so warrant, it may directly reimburse an
eligible veteran for the costs of tuition and fees, necessary supplies,
and services paid by the veteran which VA retroactively approves as a
required part of a vocational rehabilitation program under chapter 31
of title 38, United States Code.
2. VA may deduct the amount of a veteran's existing VA benefits
program debt from the amount due the veteran as a retroactive chapter
31 reimbursement payment.
Effective Date: May 2, 1997.
VAOPGCPREC 18-97
Question Presented
Does the presumption of service connection established in 38 U.S.C.
Sec. 1116 and 38 CFR Secs. 3.307(a)(6) and 3.309(e) for diseases
associated with herbicide exposure apply to both primary cancers and
cancers resulting from metastasis?
Held
Presumptive service connection may not be established under 38
U.S.C. Sec. 1116 and 38 CFR 3.307(a) for a cancer listed in 38 CFR
3.309(e) as being associated with herbicide exposure, if the cancer
developed as the result of metastasis of a cancer which is not
associated with herbicide exposure. Evidence sufficient to support the
conclusion that a cancer listed in section 3.309(e) resulted from
metastasis of a cancer not associated with herbicide exposure will
constitute ``affirmative evidence'' to rebut the presumption of service
connection for purposes of 38 U.S.C. Sec. 1113(a) and 38 CFR 3.307(d).
Further, evidence that a veteran incurred a form of cancer which is a
recognized cause, by means of metastasis, of a cancer listed in 38 CFR
3.309(e) between the date of separation from service and the date of
onset of the cancer listed in section 3.309(e) may be sufficient, under
38 U.S.C. Sec. 1113(a) and 38 CFR 3.307(d), to rebut the presumption of
service connection.
Effective Date: May 2, 1997
VAOPGCPREC 19-97
Question Presented
Under what circumstances may service connection be established for
tobacco-related disability or death on the basis that such disability
or death is secondary to nicotine dependence which arose from a
veteran's tobacco use during service?
Held
a. A determination as to whether service connection for disability
or death attributable to tobacco use subsequent to military service
should be established on the basis that such tobacco use resulted from
nicotine dependence arising in service, and therefore is secondarily
service connected pursuant to 38 CFR Sec. 3.310(a), depends upon
whether nicotine dependence may be considered a disease for purposes of
the laws governing veterans' benefits, whether the veteran acquired a
dependence on nicotine in service, and whether that dependence may be
considered the
[[Page 37955]]
proximate cause of disability or death resulting from the use of
tobacco products by the veteran. If each of these three questions is
answered in the affirmative, service connection should be established
on a secondary basis. These are questions that must be answered by
adjudication personnel applying established medical principles to the
facts of particular claims.
b. On the issue of proximate cause, if it is determined that, as a
result of nicotine dependence acquired in service, a veteran continued
to use tobacco products following service, adjudicative personnel must
consider whether there is a supervening cause of the claimed disability
or death which severs the causal connection to the service-acquired
nicotine dependence. Such supervening causes may include sustained full
remission of the service-related nicotine dependence and subsequent
resumption of the use of tobacco products, creating a de novo
dependence, or exposure to environmental or occupational agents.
Effective Date: May 13, 1997.
VAOPGCPREC 20-97
Questions Presented
a. What is the meaning of the term ``constitutionally
psychopathic'' as used in 38 CFR Sec. 3.354(a)?
b. Does the definition of insanity in 38 CFR Sec. 3.354(a) exclude
behavior which is due to a personality disorder or a substance-abuse
disorder, except where a psychosis is also present?
c. What are the intended parameters of the types of behavior which
are defined as insanity in 38 CFR Sec. 3.354(a)?
(1) Does the definition of insanity include behavior involving a
minor episode, or episodes, of disorderly conduct or eccentricity, if
the behavior is due to a disease?
(2) How significantly must an individual's behavior deviate from
his or her ``normal method of behavior'' for the person to be
considered insane under 38 CFR Sec. 3.354(a)? Is this a purely
subjective standard?
(3) What is the meaning of the phrase ``interferes with the peace
of society,'' and to what extent must an individual ``interfere'' with
society's peace to meet the definition of insane?
(4) What is the meaning of the phrase ``become antisocial'' as used
in 38 CFR Sec. 3.354(a)?
(5) Are the ``accepted standards of the community to which by birth
and education he belongs,'' as referred to in 38 CFR Sec. 3.354(a),
necessarily identical with the ``social customs of the community in
which he resides?'' If not, must an individual both deviate from the
standards of his community of ``birth and education'' as well as be
unable to adapt in order to further adjust ``to the social customs of
the community in which he resides,'' in order to meet the regulatory
definition of insanity? What evidence, if any, would be necessary to
establish either or both such community standards?
Held
a. The term ``constitutionally psychopathic'' in 38 CFR
Sec. 3.354(a) refers to a condition which may be described as an
antisocial personality disorder.
b. Behavior which is attributable to a personality disorder does
not satisfy the definition of insanity in section 3.354(a). Assuming
that a particular substance-abuse disorder is a disease for disability
compensation purposes, behavior which is generally attributable to such
disorders does not exemplify the severe deviation from the social norm
or the gross nature of conduct which is generally considered to fall
with the scope of the term insanity and therefore does not constitute
insane behavior under section 3.354(a).
c.(1) Behavior involving a minor episode or episodes of disorderly
conduct or eccentricity does not fall within the definition of insanity
in section 3.354(a).
c.(2) Determination of the extent to which an individual's behavior
must deviate from his or her normal method of behavior for purposes of
section 3.354(a) may best be resolved by adjudicative personnel on a
case-by-case basis in light of the authorities defining the scope of
the term insanity.
c.(3) The phrase ``interferes with the peace of society'' in 38 CFR
Sec. 3.354(a) refers to behavior which disrupts the legal order of
society. Determination of the extent to which an individual must
interfere with the peace of society so as to be considered insane for
purposes of section 3.354(a) may be resolved by adjudicative personnel
on a case-by-case basis in light of the authorities defining the scope
of the term insanity.
c.(4) The term ``become antisocial'' in 38 CFR Sec. 3.354(a) refers
to the development of behavior which is hostile or harmful to others in
a manner which deviates sharply from the social norm and which is not
attributable to a personality disorder.
c.(5) Reference in 38 CFR Sec. 3.354(a) to ``accepted standards of
the community to which by birth and education'' an individual belongs
requires consideration of an individual's ethnic and cultural
background and level of education. The regulatory reference to ``social
customs of the community'' in which an individual resides requires
assessment of an individual's conduct with regard to the contemporary
values and customs of the community at large.
Effective Date: May 22, 1997.
VAOPGCPREC 21-97
Question Presented
Are amounts received as per capita distributions of revenues from
gaming activity on tribal trust property considered income for purposes
of improved pension, section 306 pension, old-law pension, or parent's
dependency and indemnity compensation (DIC)?
Held
Amounts received by an individual pursuant to a per capita
distribution of proceeds from gaming on Indian trust lands pursuant to
the Indian Gaming Regulatory Act are considered income for purposes of
Department of Veterans Affairs income-based benefits.
Effective Date: May 23, 1997.
By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 97-18495 Filed 7-14-97; 8:45 am]
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