[Federal Register Volume 65, Number 104 (Tuesday, May 30, 2000)]
[Notices]
[Pages 34531-34533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12867]


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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.

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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

[[Page 34532]]

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 
increased-rating 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 pre-dates 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 pre-amendment 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

[[Page 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 asbestos-related 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 asbestos-related 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 well-grounded 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 asbestos-related 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