[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Notices]
[Pages 11229-11230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5008]


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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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[[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]
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