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###### Department of Veterans Affairs

# AGENCY:

Department of Veterans Affairs.

# ACTION:

Notice.

      ( print page 11230)    

# SUMMARY:

The Department of Veterans Affairs (VA) is publishing a summary of legal interpretations issued by the 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 involving the same legal issues. The summary is published to provide the public, and, in particular, Veterans' benefits 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, 810 Vermont Avenue, N.W. (026H), Washington, DC 20420, (202) 461-7623.

# SUPPLEMENTARY INFORMATION:

A VA regulation at 38 CFR 2.6(e)(8) delegates to the General Counsel the power to designate an opinion as precedential and 38 CFR 14.507(b) specifies that precedential opinions involving Veterans' benefits are binding on VA officials and employees in subsequent matters involving the legal issue decided in the precedent opinion. The interpretation of the General Counsel on legal matters, contained in such opinions, is conclusive as to all VA officials and employees, not only in the matter at issue, but also in future adjudications and appeals involving the same legal issues, 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' benefits 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 the opinions on the internet at                     *http://www.va.gov/​ogc/​precedentopinions.asp.*

## VAOPGCPREC 1-2010

### Questions Presented

May the amount of a tort claim settlement required to be offset from 38 U.S.C. 1151 disability compensation be reduced by the amount of an overpayment of such compensation, due to untimely discontinuance of compensation, that does not result in the creation of a debt or is waived?'

### Held

If a veteran who has established entitlement to compensation for a disability under 38 U.S.C. 1151(a) is awarded a judgment or enters into a settlement or compromise under the Federal Tort Claims Act based on the same disability, section 1151(b)(1) prohibits the Department of Veterans Affairs (VA) from paying compensation for that disability for any month beginning after the judgment, settlement, or compromise becomes final until the aggregate amount of compensation that would otherwise have been paid equals the amount of the judgment, settlement, or compromise. If VA erroneously continues to pay compensation to the veteran and the resulting overpayment does not result in establishment of a debt or VA waives recovery of the overpayment, VA may not apply the amount of the overpayment or the waived amount to reduce the amount required to be offset from future compensation payments.

*Effective Date:*                     January 4, 2010.                

## VAOPGCPREC 2-2007 Withdrawn

VAOPGCPREC 2-2007 is not applicable to claims in which the claimant dies on or after October 10, 2008. Subsequent to the issuance of that opinion, Congress enacted Public Law 110-389, section 212 of which added a new section 5121A to title 38, U.S. Code, providing that, if a claimant dies while a claim or an appeal of a decision on a claim is pending, a person who would be eligible for accrued benefits under 38 U.S.C. 5121(a) may, within one year of the claimant's death, request to be substituted as the claimant for purposes of processing the claim to completion.

                    Furthermore, section 212(c) of Public Law 110-389 specifies that section 5121A shall apply with respect to the claim of any claimant who dies on or after the date of enactment, October 10, 2008.                     *Id.*                     Therefore, VAOPGCPREC 2-2007 is obsolete as to pending claims in which the claimant dies on or after that date.                

*Effective Date:*                     September 14, 2009                

## VAOPGCPREC 6-1999 Withdrawn

                    VAOPGCPREC 6-99 is withdrawn in light of the subsequent decision of the Court of Appeals for Veterans Claims in                     *Bradley*                     v.                     *Peake,*                     22 Vet. App. 280 (2010). In VAOPGCPREC 6-99, we explained that section 1114(s) excludes total disability based upon individual unemployability (TDIU) as a basis for establishing a total rating under that section because a TDIU rating takes into account all of a Veteran's service-connected disabilities and that, therefore, considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the statutory requirement for “additional” disability of 60 percent or more by counting the same disability twice. The exclusion of TDIU as a basis for satisfying the total-rating requirement under section 1114(s) holds true in the specific circumstance where a disability relied upon in establishing the TDIU rating would also be relied upon, at least in part, in meeting the statutory requirement for “additional” disability of 60 percent or more. In such a case, consideration of a TDIU rating for purposes of awarding SMC would result in duplicate counting of a disability in awarding additional; compensation.                

                    However, the Veterans Court found there are other circumstances in which a TDIU rating may satisfy the total-rating requirement without resulting in duplicate counting of a disability. The court concluded that it is possible for a Veteran to be awarded TDIU based on a single disability and receive schedular disability ratings for other conditions. Under that circumstance, the court concluded there would be no duplicate counting of disabilities in awarding SMC based on the TDIU rating and schedular rating(s) and read the General Counsel opinion as not barring the TDIU rating where the same disability need not be counted twice, i.e., as a basis for TDIU and as a separate disability rated 60-percent or more disabling. Furthermore, the logic of                     *Bradley*                     suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100-percent disability rating. This would directly conflict with the holdings of VAOPGCPREC 6-99.                

*Effective Date:*                     November 4, 2009                

Dated: March 4, 2010.

By Direction of the Secretary.

Will A. Gunn,

General Counsel.

[FR Doc. 2010-5008 Filed 3-9-10; 8:45 am]

BILLING CODE 8320-01-P