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###### Department of Veterans Affairs

# 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 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                           ( print page 59989)                        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 § 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                           ( print page 59990)                        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] 

BILLING CODE 8320-01-P