Federal Register / Vol. 65, No. 104 / Tuesday, May 30, 2000 / Notices 34531

An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless the collection of information

displays a valid OMB control number.

Books or records relating to a

collection of information must be

retained as long as their contents may

become material in the administration

of any internal revenue law. Generally,

tax returns and tax return information

are confidential, as required by 26

U.S.C. 6103.

REQUEST FOR COMMENTS: Comments

submitted in response to this notice will

be summarized and/or included in the

request for OMB approval. All

comments will become a matter of

public record. Comments are invited on:

(a) Whether the collection of

information is necessary for the proper

performance of the functions of the

agency, including whether the

information shall have practical utility;

(b) the accuracy of the agency’s estimate

of the burden of the collection of

information; (c) ways to enhance the

quality, utility, and clarity of the

information to be collected; (d) ways to

minimize the burden of the collection of

information on respondents, including

through the use of automated collection

techniques or other forms of information

technology; and (e) estimates of capital

or start-up costs and costs of operation,

maintenance, and purchase of services

to provide information.

Approved: May 23, 2000.

Garrick R. Shear,

IRS Reports Clearance Officer.

[FR Doc. 00–13458 Filed 5–26–00; 8:45 am]

BILLING CODE 4830–01–U

DEPARTMENT OF VETERANS

AFFAIRS

[OMB Control No. 2900–0001]

Proposed Information Collection

Activity: Proposed Collection;

Comment Request

AGENCY: Veterans Benefits

Administration, Department of Veterans

Affairs.

ACTION: Notice.

SUMMARY: The Veterans Benefits

Administration (VBA), Department of

Veterans Affairs (VA), is announcing an

opportunity for public comment on the

proposed collection of certain

information by the Agency. Under the

Paperwork Reduction Act (PRA) of

1995, Federal agencies are required to

publish notice in the Federal Register

concerning each proposed collection of

information, including each revision of

a currently approved collection and

allow 60 days for public comment in

response to the notice. This notice

solicits comments on information

needed to determine a veteran’s

eligibility, dependency, and income, as

appropriate, for compensation and/or

pension benefits.

DATES: Written comments and

recommendations on the proposed

collection of information should be

received on or before July 31, 2000.

ADDRESSES: Submit written comments

on the collection of information to

Nancy J. Kessinger, Veterans Benefits

Administration (20S52), Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC 20420. Please refer

to ‘‘OMB Control No. 2900–0001’’ in

any correspondence.

FOR FURTHER INFORMATION CONTACT:

Nancy J. Kessinger at (202) 273–7079 or

FAX (202) 275–5947.

SUPPLEMENTARY INFORMATION: Under the

PRA of 1995 (Public Law 104–13; 44

U.S.C., 3501–3520), Federal agencies

must obtain approval from the Office of

Management and Budget (OMB) for each

collection of information they conduct

or sponsor. This request for comment is

being made pursuant to Section

3506(c)(2)(A) of the PRA.

With respect to the following

collection of information, VBA invites

comments on: (1) Whether the proposed

collection of information is necessary

for the proper performance of VBA’s

functions, including whether the

information will have practical utility;

(2) the accuracy of VBA’s estimate of the

burden of the proposed collection of

information; (3) ways to enhance the

quality, utility, and clarity of the

information to be collected; and (4)

ways to minimize the burden of the

collection of information on

respondents, including through the use

of automated collection techniques or

the use of other forms of information

technology.

Title: Veteran’s Application for

Compensation and/or Pension, VA Form

21–526.

OMB Control Number: 2900–0001.

Type of Review: Revision of a

currently approved collection.

Abstract: This form is used as an

original application for veterans to

apply for compensation and/or pension

benefits.

Affected Public: Individuals or

households.

Estimated Annual Burden: 592,500

hours.

Estimated Average Burden Per

Respondent: 1 hour and 30 minutes.

Frequency of Response: On occasion.

Estimated Number of Respondents:

395,000.

Dated: March 17, 2000.

By direction of the Secretary.

Sandra S. McIntyre,

Management Analyst, Information

Management Service.

[FR Doc. 00–13396 Filed 5–26–00; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF VETERANS

AFFAIRS

Summary of Precedent Opinions of the

General Counsel; Republication

Editorial Note: FR Doc. 00–12867 was

originally published in the issue of Tuesday,

May 23, 2000. The corrected document is

republished in its entirety due to the

omission of text.

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 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 adjudictions 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 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

34532 Federal Register / Vol. 65, No. 104 / Tuesday, May 30, 2000 / Notices

deleted, may be obtained by contacting

the VA official named above.

New Precedent Opinions

VAOPGCPREC 01–2000

Question Presented

a. Is the last sentence of 38 CFR 3.272

(h) consistent with 38 U.S.C. 1503(a)(3)

in providing that expenses of a veterans’

last illness paid by a surviving spouse

subsequent to the veteran’s death, but

prior to the date of entitlement to

improved death pension, may not be

excluded form countable income for the

purpose of determining death pension

entitlement?

b. If so: (1) What is the basis for the

differing treatment accorded by section

3.272(h) to expenses paid prior to the

date of death and those paid after the

date of death but before the date of

entitlement; and, (2) does Congress’

intent is enacting Pub. L. No. 98–369 to

limit retroactive payments of pension in

the case of claimants who file claims

more than 45 days after the date of a

veteran’s death provide an adequate

basis for prohibiting consideration of

expenses in determining prospective

entitlement for the period following the

date of claim?

Held

a. The last sentence of 38 CFR

3.272(h) is inconsistent with 38 U.S.C.

1503(a)(3) in providing that expenses of

a veteran’s last illness paid by the

veteran’s surviving spouse subsequent

to the veteran’s death, but prior to the

date of the surviving spouse’s

entitlement to death pension, may not

be deducted from countable income for

the purpose of determining entitlement

to improved death pension. VA may not

rely upon the last sentence of 38 CFR

3.272(h) as a basis for denying a death

pension claim or reducing the amount

of benefits payable.

b. (1) There is no basis for the

differing treatment currently accorded

under 38 CFR 3.272(h) for expenses of

a veteran’s last illness paid prior to the

date of a veteran’s death and those paid

after the date of death but before the

date of a surviving spouse’s entitlement

to death pension.

(2) Congress’ intent in enacting Pub.

L. No. 98–369 to limit retroactive

payments of pension in the case of

claimants who file claims more than 45

days after the date of a veteran’s death

does not provide an adequate basis for

prohibiting consideration of expenses of

a veteran’s last illness in determining

prospective entitlement for the period

following the date of a claim for

improved death pension.

Effective Date: March 28, 2000

VAOPGCPREC 02–2000

Question Presented

May the Department of Veterans

Affairs (VA) through rulemaking

authorize special monthly

compensation under 38 U.S.C. 1114(k)

(k-rate SMC) for a service-connected

mastectomy?

Held

Section 1114(k) of title 38, United

States Code, authorizes a special rate of

compensation for the disabilities

specified in that provision. Neither

section 1114(k) nor VA’s general

rulemaking authority, 38 U.S.C. 501(a),

delegates to VA authority to recognize

by rulemaking additional injuries or

conditions not specified in section

1114(k) ‘‘for which the special rate of

compensation will be paid. By

authorizing that rate of compensation

for anatomical loss or loss of use of one

or more creative organs,’’ Congress

intended to compensate for loss of a

procreative, or reproductive, organ,

which does not include the breast.

Therefore, VA may not by rulemaking

authorize special monthly

compensation under section 1114(k) for

a service-connected mastectomy.

Effective Date: April 3, 2000

VAOPGCPREC 03–2000

Question Presented

a. When the Department of Veterans

Affairs (VA) issues an amendment to a

provision of its rating schedule while a

claim for an increased rating is pending,

what is the proper analysis for

determining whether, and to what

extent, the pending claim is governed by

the prior rating-schedule provision or

the revised rating-schedule provision?

b. When the Board of Veterans’

Appeals (Board) addresses an increasedrating claim involving a disability for

which the rating criteria have changed

during the pendency of the appeal,

should the Board make separate

findings of fact and conclusions of law,

and provide reasons or bases in its

decision, with respect to application of

both the old and the new rating criteria?

c. Where there has been a change in

rating criteria during the pendency of an

appeal, should all evidence of record be

considered when determining whether

an increased rating is warranted, or

should only the evidence which predates or post-dates the effective date of

the change in law be taken into

consideration when addressing the

rating prior to and after the change in

law, respectively?

Held

a. When a provision of the

Department of Veterans Affairs (VA)

rating schedule is amended while a

claim for an increased rating under that

provision is pending, the Board should

first determine whether the amended

regulation is more favorable to the

claimant. It may be necessary for the

Board to separately apply the preamendment and post-amendment

version of the regulation to the facts of

the case in order to determine which

provision is more favorable, unless it is

clear from a facial comparison of both

versions that one version is more

favorable. If the amended regulation is

more favorable to the claimant, then the

retroactive reach of the regulation is

governed by 38 U.S.C. 5110(g), which

provides that VA may, if warranted by

the facts of the claim, award an

increased rating based on a change in

law retroactive to, but no earlier than,

the effective date of the change.

Accordingly, the Board should apply

the amended regulation to rate the

veteran’s disability for periods from and

after the effective date of the

amendment. The Board should apply

the prior version of the regulation to rate

the veteran’s disability for any period

preceding the effective date of the

amendment.

b. Pursuant to 38 U.S.C. 7104(d)(1),

decisions of the Board of Veterans’

Appeals (Board) must contain separate

findings, conclusions, and statements of

the reasons or bases therefore, with

respect to findings and conclusions on

issues ‘‘material’’ to the Board’s

decision. Determinations of which

version of an amended rating-schedule

provision is more favorable to a

claimant and rating of a disability using

the rating criteria applicable for a

particular period are issues material to

a claim for an increased rating.

Accordingly, the Board would be

required to comply with 38 U.S.C.

7104(d)(1) in making those

determinations.

c. Pursuant to 38 U.S.C. 7104(a), the

Board’s decisions must be based on

consideration of all evidence and

material of record, rather than merely

evidence which pre-dates or post-dates

a pertinent change to VA’s rating

schedule. In determining the extent of

disability existing prior to a regulatory

change, the Board may not simply

ignore documents post-dating the

regulatory change, since such

documents could provide evidence that

an increase in disability occurred at an

earlier time. Likewise, in determining

the level of disability existing

subsequent to a regulatory change, the

Federal Register / Vol. 65, No. 104 / Tuesday, May 30, 2000 / Notices 34533

Board may not simply ignore evidence

pre-dating the change, since such

evidence may bear upon the level of

disability existing subsequently.

Effective Date: April 10, 2000.

VAOPGCPREC 04–2000

Question Presented

A. Do provisions of paragraph 7.21 in

Veterans Benefits Administration (VBA)

Adjudication Procedure Manual M21–1

(Manual M21–1), Part VI, pertaining to

claims involving asbestos-related

diseases constitute regulations which

are binding on the Department of

Veterans Affairs (VA)?

B. Is medical-nexus evidence required

to establish a well-grounded claim for

service connection for an asbestosrelated disease referenced in paragraph

7.21 of VBA Manual M21–1, Part VI,

and allegedly due to in-service asbestos

exposure?

Held

A. (1) Paragraph 7.21a., b., c., and

d.(3) of Veterans Benefits

Administration Adjudication Procedure

Manual M21–1, Part VI, and the fourth

and fifth sentences of paragraph

7.21d.(1) of that manual are not

substantive in nature. However, relevant

factors discussed in paragraphs 7.21a.,

b., and c. must be considered and

addressed by the Board in assessing the

evidence regarding an asbestos-related

claim in order to fulfill the Board’s

obligation under 38 U.S.C. 7104(d)(1) to

provide an adequate statement of the

reasons and bases for a decision.

(2) The first three sentences of

paragraph 7.21d (1) of Veterans Benefits

Administration Adjudication Procedure

Manual M21–1, Part VI, establish a

procedure which, in light of current

case law, adjudicators are required to

follow in claims involving asbestosrelated diseases. However, to the extent

that paragraph 7.21d(1) of that manual

establishes claim-development

procedures, those procedures are only

applicable in the case of a wellgrounded claim.

(3) Paragraph 7.21d.(2) of Veterans

Benefits Administration Adjudication

Procedure Manual M21–1, Part VI,

should be regarded as substantive.

However, that paragraph should not be

treated as binding to the extent it may

adversely affect a claimant by requiring

that a particular asbestos-related disease

be rated by analogy to a specified

condition, where a rating more favorable

to the claimant would be obtained by

reference to current rating criteria for

the particular disease in VA’s rating

schedule. Similarly, where the current

rating schedule contains no criteria

specific to the asbestos-related disease,

paragraph 7.21d.(2) should be treated as

binding to the extent it would adversely

affect a claimant by requiring that

asbestos-related disease be rated by

analogy to a particular condition, where

a rating more favorable to the claimant

would be obtained by rating by analogy

to another disease pursuant to 38 CFR

4.20.

B. Medical-nexus evidence is required

to establish a well-grounded claim for

service connection for an asbestosrelated disease related disease

referenced in paragraph 7.21 of Veterans

Benefits Administration Adjudication

Procedure Manual M21–1, Part VI, and

allegedly due to in-service asbestos

exposure.

Effective Date: April 13, 2000.

Withdrawn Precedent Opinion

VAOPGCPREC 13–94

‘‘* * * G.C. Prec. 13–94

[VAOPGCPREC 13–94] held the

following:

Service connection may not be

established for a disability incurred

following the date on which a veteran

was discharged from active-duty credit

granted by a Board for Correction of

Military Records to a date after the date

on which injury occurred, because the

veteran was not engaged in active

service at that time.’’

VAOPGCPREC 13–94 was overruled

by Spencer v. West, 2000 WL 266117

(Vet. App., March 13, 2000).

Accordingly, VAOPGCPREC 13–94 is

hereby withdrawn.

Effective Date: March 13, 2000.

By Direction of the Secretary.

Leigh A. Bradley,

General Counsel.

Editorial Note: FR Doc. 00–12867 was

originally published in the issue of Tuesday,

May 23, 2000. The corrected document is

republished in its entirety due to the

omission of text.

[FR Doc. 00–12867 Filed 5–22–00 and 5–

26–00; 8:45 am]

BILLING CODE 8320–01–M and 1505–01–D