[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Notices]
[Pages 59988-59990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22436]


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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 Office of 
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. They 
are being published to provide the public, and, in particular, 
veterans' benefit claimants and their representatives, with notice of 
VA's interpretations regarding the legal matters at issue.

FOR FURTHER INFORMATION CONTACT: Susan P. Sokoll, Law Librarian, 
Department of Veterans Affairs (026H), 810 Vermont Ave., NW., 
Washington, DC 20420, (202) 273-6558.

SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(8) and 
14.507 authorize the Department's Office of General Counsel to issue 
written legal opinions having precedential effect in adjudications and 
appeals involving veterans' benefits under the 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 or by accessing them on the Internet at http://www1.va.gov/OGC/.

VAOPGCPREC 4-2004

    Question Presented: How can the Department of Veterans Affairs (VA) 
reconcile the decision of the United States Court of Appeals for the 
Federal Circuit (Federal Circuit) in Moody v. Principi, 360 F.3d 1306 
(Fed. Cir. 2004), and law on claims alleging clear and

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unmistakable error (CUE) in final VA decisions?
    Held: For a final Department of Veterans Affairs (VA) or Board of 
Veterans' Appeals decision to be reversed or revised under 38 U.S.C. 
5109A or 7111 (clear and unmistakable error) on the ground that VA 
failed to recognize a claim for veterans benefits, it must be concluded 
that: (1) It is obvious or undebatable that, when prior filings are 
construed in the claimant's favor, the pleadings constitute an earlier 
claim for the veterans benefit that was subsequently awarded by VA; and 
(2) VA's failure to recognize that claim manifestly affected the 
subsequent award of benefits. VAOPGCPREC 12-2001 is hereby superseded 
by this opinion.
    Effective Date: May 28, 2004.

VAOPGCPREC 5-2004

    Question Presented:
    A. Does 38 U.S.C. 5103(a) require the Department of Veterans 
Affairs (VA) to provide notice of any information and evidence 
necessary to substantiate a claim where the claim cannot be 
substantiated under the law or based on the application of the law to 
undisputed facts?
    B. Does 38 U.S.C. 5103A require VA to assist a claimant in 
obtaining evidence where the claim cannot be substantiated under the 
law or based on the application of the law to undisputed facts?
    Held:
    A. Under 38 U.S.C. 5103(a), the Department of Veterans Affairs (VA) 
is not required to provide notice of the information and evidence 
necessary to substantiate a claim where that claim cannot be 
substantiated because there is no legal basis for the claim or because 
undisputed facts render the claimant ineligible for the claimed 
benefit.
    B. Under 38 U.S.C. 5103A, VA is not required to assist a claimant 
in developing evidence to substantiate a claim where there is no 
reasonable possibility that such aid could substantiate the claim 
because there is no legal basis for the claim or because undisputed 
facts render the claimant ineligible for the claimed benefit.
    Effective Date: June 23, 2004.

VAOPGCPREC 6-2004

    Question Presented:
    A. Is the determination of the character of discharge of a National 
Guard member who seeks disability compensation for an injury incurred 
during active duty for training (ADT) based only on discharge or 
release from the ADT period or must the determination be based on the 
member's discharge from the entire period of service in the National 
Guard?
    B. If the character of a National Guard member's discharge is based 
on the member's discharge from the entire period of service in the 
National Guard, must the Department of Veterans Affairs reconsider an 
award of disability compensation made before the member separated from 
the National Guard if, at the time the member is separated from the 
National Guard, the member's discharge is characterized as less than 
honorable?
    Held:
    A. When an individual applies for benefits based on an injury 
incurred during active duty for training (ADT) while in the National 
Guard, the Department of Veterans Affairs must determine under 38 CFR 
3.12 whether the individual was discharged or released from the ADT 
period under conditions other than dishonorable.
    B. If VA has awarded disability compensation to an individual based 
on a disability incurred in a period of ADT while the individual was in 
the National Guard and the individual is subsequently discharged from 
the National Guard under other than honorable conditions, VA need not 
reconsider the earlier award unless the facts underlying the subsequent 
discharge specifically relate to the ADT period and suggest that the 
earlier determination regarding character of discharge or release was 
clearly and unmistakably erroneous.
    Effective Date: July 12, 2004.

VAOPGCPREC 7-2004

    Question Presented: What did the United States Court of Appeals for 
Veterans Claims hold in Pelegrini v. Principi, No. 01-944, 2004 WL 
1403714 (Vet. App. June 24, 2004), regarding the Department of Veterans 
Affairs' obligation to provide notice pursuant to 38 U.S.C. 5103(a)?
    Held: The only holdings in Pelegrini v. Principi, No. 01-944, 2004 
WL 1403714 (Vet. App. June 24, 2004), regarding the obligation of the 
Department of Veterans Affairs (VA) to provide notice pursuant to 38 
U.S.C. 5103(a) are the following:
    1. Section 5103(a) of title 38, United States Code, and Sec.  
3.159(b)(1) of title 38, Code of Federal Regulations, generally require 
that a claimant for service connection be provided notice before an 
initial unfavorable decision by a VA agency of original jurisdiction 
(AOJ).
    2. Section 5103(a) of title 38, United States Code, and 38 CFR 
3.159(b)(1) apply to Mr. Pelegrini's claim, which the AOJ had denied 
before November 9, 2000, but which was still pending before VA on that 
date.
    3. A VA AOJ did not err by not providing notice that complies with 
38 U.S.C. 5103(a) prior to the initial denial of Mr. Pelegrini's claim 
before the date on which the statute was enacted.
    4. If the United States Court of Appeals for Veterans Claims (CAVC) 
remands a case for VA to provide notice consistent with 38 U.S.C. 
5103(a) and 38 CFR 3.159(b)(1) (notice that informs the claimant of any 
information and evidence not of record that is necessary to 
substantiate the claim, indicates which party is responsible for 
obtaining which portion of such evidence, and requests that the 
claimant provide any evidence in the claimant's possession that 
pertains to the claim), the Board must ensure that complying notice is 
provided unless the Board makes findings regarding the completeness of 
the record or as to other facts that would permit the CAVC to conclude 
that the notice error was harmless, including an enumeration of all 
evidence now missing from the record that must be part of the record 
for the claimant to prevail on the claim.
    Effective Date: July 16, 2004.

VAOPGCPREC 8-2004

    Question Presented:
    (a) Does the age limitation for payment of chapter 35 benefits 
contained at 38 CFR 21.3040(d) and 21.304(d) apply to the exception to 
the basic eligibility period for receipt of chapter 35 benefits 
contained at 38 U.S.C.A. 3512(a)(3)?
    (b) What is the effect of revision of a rating under 38 CFR 
3.105(a) as regards the period of eligibility for chapter 35 benefits? 
Did VA ``first find'' the veteran in this case permanently and totally 
disabled in November 1999, when the corrected decision was made, or in 
August 1986, which was the effective date under 38 CFR 3.400(k) for 
that rating?
    Held:
    (a) An extension of an eligible child's chapter 35 eligibility 
period under 38 U.S.C. 3512(a)(3) may be granted beyond age 31. To the 
extent 38 CFR 3041(d) purports to bar extensions of the basic 
eligibility period beyond age 31 in circumstances other than as 
described in either 38 U.S.C. 3512(a)(4) (following service on active 
duty); section 3512(a)(5) (following the date the child became eligible 
based on the parent being a member of the Armed Forces missing in 
action, captured by a hostile force, or forcibly detained or interned 
by a foreign government or power pursuant to section 
3501(a)(1)(A)(iii)); or section 3512(c) (following suspension of the

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child's program for reasons beyond the child's control, it is ultra 
vires and of no effect.
    (b) The effect of finding clear and unmistakable error (``CUE'') is 
that the corrected decision is considered made on the date of the 
reversed decision. 38 CFR 3.105(a). Based on CUE, the veteran in this 
case was found entitled to compensation for permanent and total 
service-connected disability (``P&T'') effective August 19, 1986. As of 
the same date, each of the veteran's sons thereby became an ``eligible 
person'' (defined in 38 U.S.C. 3501(a)(1)(A)(ii)) entitled to chapter 
35 education benefits. Such entitlement may be used during an 8-year 
eligibility period determined pursuant to 38 U.S.C. 3512, but in no 
event before the date when the affected child became an ``eligible 
person'' (i.e., August 19, 1986).
    (c) The basic chapter 35 eligibility period under section 3512(a) 
runs from the child's 18th birthday to the child's 26th birthday, but 
exceptions exist. Under the ``first finds'' exception, when the 
effective date of the veteran's P&T disability is between the child's 
18th and 26th birthdays, section 3512(a)(3), as in force in November 
1999, establishes, by operation, the beginning date for the child's 
eligibility period as the date the Secretary first finds that the 
parent from who eligibility is derived has a service-connected 
disability permanent in nature. The term ``first finds'' is defined in 
subsection 3512(d) to mean the effective date of the parent's P&T 
rating or the date of notification to the parent, whichever is more 
advantageous to the eligible person. Thus, a child's chapter 35 
eligibility period must be determined on the facts found and based on 
the eligibility-period-beginning date that is more advantageous to the 
child pursuant to the application of both section 3512(a)(3) and 
section 3512(d). In addition, an award of chapter 35 benefits is 
predicated on the timely filing of a claim therefor. 38 U.S.C. 3513; 38 
CFR 21.1029. The date of claim is an integral factor in determining the 
date from which benefits may be awarded, pursuant to 38 U.S.C. 5113, 
for pursuit of an approved program of education pursued during the 
child's established chapter 35 eligibility period.
    Effective Date: July 27, 2004.

VAOPGCPREC 9-2004

    Question Presented: Can a veteran receive separate ratings under 
Diagnostic Code (DC) 5260 (leg, limitation of flexion) and DC 5261 
(leg, limitation of extension) for disability of the same joint?
    Held: Separate ratings under DC 5260 (leg, limitation of flexion) 
and DC 5261 (leg, limitation of extension), both currently codified at 
38 CFR 4.71a, may be assigned for disability of the same joint.
    Effective Date: September 17, 2004.

    Dated: September 27, 2004.

    By Direction of the Secretary.
John H. Thompson,
Deputy General Counsel.
[FR Doc. 04-22436 Filed 10-5-04; 8:45 am]
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