[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Notices]
[Pages 63603-63605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31329]


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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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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 interpretations 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 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 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 deleted, may be obtained by contacting the VA official 
named above.

[[Page 63604]]

VAOPGCPREC 22-97

Question Presented

    May the Department of Veterans Affairs (VA) withhold monthly 
benefits from beneficiaries in situations where the payee refuses to 
participate in the Electronic Funds Transfer Program?

Held

    The Secretary has authority under the DCIA to withhold monthly VA 
benefits to a recipient of Federal payments subject to the EFT program 
if the recipient has not complied with the statutory EFT requirements 
and is not entitled to a waiver of their application.

    Effective Date: June 20, 1997.

VAOPGCPREC 23-97

Question Presented

    Where a claimant has arthritis and instability of the knee, does 38 
CFR 4.71a authorize multiple ratings under diagnostic codes 5003 and 
5257?

Held

    A claimant who has arthritis and instability of the knee may be 
rated separately under diagnostic codes 5003 and 5257.

    Effective Date: July 1, 1997.

VAOPGCPREC 24-97

Question Presented

    Is a veteran who is receiving compensation pursuant to 38 U.S.C. 
1151 due to blindness in both eyes which resulted from the veteran's 
hospitalization, medical, or surgical treatment by VA, and not incurred 
or aggravated in the line of duty in the active military, naval, or air 
service, eligible for a special housing adaptation grant under chapter 
21 of title 38, United States Code?

Held

    A veteran with a disability that resulted from VA hospitalization 
or medical or surgical treatment who has been determined eligible for 
compensation ``as if'' such injury were service connected pursuant to 
38 U.S.C. 1151 is not eligible for a special housing adaptation grant 
as a result of the disability caused by VA medical care.

    Effective Date: July 3, 1997.

VAOPGCPREC 25-97

Question Presented

    Should military retired pay that is paid directly to a veteran's 
ex-spouse by a military finance center pursuant to a divorce decree or 
garnishment order be considered income of the veteran for purposes of 
determining his or her entitlement to Department of Veterans Affairs 
(VA) need-based benefits?

Held

    Whether military retired pay paid directly to a veteran's ex-spouse 
by a military finance center pursuant to a divorce must be included in 
the veteran's annual income for purposes of determining eligibility for 
need-based veterans' benefits is dependent upon the property rights of 
the parties in the military retired pay, as determined in the pertinent 
divorce decree and any related property settlement, interpreted in 
light of applicable state law. Where, in a divorce proceeding, military 
retired pay is treated as marital property and divided between the 
parties to the proceeding, only that portion of the retired pay which 
is determined to be the property of the veteran is countable as income 
of the veteran for purposes of determining entitlement for need-based 
veterans' benefits. Where no such division of property has occurred, 
the full amount of such retired pay is attributable to the veteran, 
regardless of whether all or a portion of the retired pay is paid 
directly to the veteran's ex-spouse pursuant to a voluntary or 
involuntary allotment or a garnishment order.

    Effective Date: July 16, 1997.

VAOPGCPREC 26-97

Question Presented

    Was the addition of a diagnosis of post-traumatic stress disorder 
(PTSD) to the rating schedule, effective April 11, 1980, ``a 
liberalizing law, or a liberalizing [Department of Veterans Affairs 
(VA)] issue'' of 38 CFR 3.114(a)?

Held

    The addition of PTSD as a diagnostic entity in the schedule for 
rating mental disorders was a ``liberalizing VA issue'' for purposes of 
38 CFR 3.114(a). However, an effective date prior to the date of claim 
cannot be assigned under section 3.114(a) unless the claimant met all 
eligibility criteria for the liberalized benefit on April 11, 1980, the 
effective date of the regulatory amendment adding the diagnostic code 
for PTSD, and such eligibility existed continuously from that date to 
the date of claim or administrative determination of entitlement.

    Effective Date: July 16, 1997.

VAOPGCPREC 27-97

Question Presented

    Whether service on a naval vessel in the waters off the shore of 
Vietnam constitutes service in the Republic of Vietnam for purposes of 
38 U.S.C. 101(29)(A), which defines the Vietnam era as the period 
beginning on February 28, 1961, and ending on May 7, 1975, in the case 
of a veteran who served in the Republic of Vietnam during that period.

Held

    Service on a deep-water naval vessel in waters off the shore of the 
Republic of Vietnam does not constitute service in the Republic of 
Vietnam for purposes of 38 U.S.C. 101(29)(A), as added by section 505 
of the Veterans' Benefits Improvements Act of 1996, which provides that 
the term ``Vietnam era'' means the period beginning on February 28, 
1961, and ending on May 7, 1975, in the case of a veteran who served in 
the Republic of Vietnam during that period.

    Effective Date: July 23, 1997

VAOPGCPREC 28-97

Question Presented

    Whether a person insured under Service Disabled Veterans' 
Insurance, who does not receive a waiver of premiums pursuant to 38 
U.S.C. 1912 because the insured died prior to the continuance of total 
disability for six consecutive months, is nonetheless eligible for 
supplemental Service Disabled Veterans' pursuant to 38 U.S.C. 1922A.

Held

    A person insured under Service Disabled Veterans' Insurance, who 
does not qualify for a waiver of premiums pursuant to 38 U.S.C. 1912 
because the insured died prior to the continuance of total disability 
for six months, is not eligible for supplemental Service Disabled 
Veterans Insurance pursuant to 38 U.S.C. 1922A.

VAOPGCPREC 29-97

Question Presented

    Does 38 C.F.R. 3.105(e) apply to cases subject to the special 
settlement review under the provisions of the October 15, 1993, 
Stipulation and Order in Fernando Giusti Bravo, et al v. U.S. 
Department of Veterans Affairs, et al., where there is no reduction of 
a service-connected disability rating which results in reduction or 
discontinuance of compensation payments currently being made?

Held

    38 C.F.R. 3.105(e) applies to cases subject to the special 
settlement review under the provisions of the October 15, 1993, 
Stipulation and Order in Fernando Giusti Bravo, et al. v. U.S.

[[Page 63605]]

Department of Veterans Affairs, et al. only where there is a reduction 
of service-connected disability rating which results in reduction or 
discontinuance of compensation payments currently being made. Thus, the 
provisions of section 3.105(e) which require VA to provide a proposed 
rating action and a 60-day pretermination notice are inapplicable where 
there is no reduction of a service-connected disability rating which 
results in reduction or discontinuance of compensation payments 
currently being made.

    Effective Date: August 7, 1997.

VAOPGCPREC 30-97

Question Presented

    What level of special monthly compensation (SMC) should be awarded 
to a claimant with nonservice-connected paraplegia who is entitled to 
compensation under 38 U.S.C. 1151 for disarticulation of the hips?

Held

    Regardless of preexisting paraplegia, SMC is payable at the rate 
prescribed in 38 U.S.C. 1114(n) to a claimant who is entitled to 
compensation for bilateral disarticulation of the hips under 38 U.S.C. 
1151.

    Effective Date: August 29, 1997.

VAOPGCPREC 31-97

Question Presented

    If the Board of Veterans' Appeals concludes upon reconsideration 
that the Department of Veterans Affairs Regional Office erred in 
determining the effective date of a reduction in compensation pursuant 
to 38 U.S.C. 5112(6) and 38 CFR 3.105(e), does that error render the 
decision reducing the rating void ab initio, requiring reinstatement of 
the prior rating?

Held

    The reduction of a disability rating, if otherwise supportable, is 
not rendered void ab initio by virtue of error in the assignment of the 
effective date for it.

    Effective Date: August 29, 1997.

VAOPGCPREC 32-97

Question Presented

    When a claimant has service-connected, partial hearing loss in only 
one ear, should the hearing in the other ear be considered normal for 
purposes of rating the service-connected hearing loss?

Held

    If a claimant has service-connected hearing loss in one ear and 
nonservice-connected hearing loss in the other ear, the hearing in the 
ear having nonservice-connected loss should be considered normal for 
purposes of computing the service-connected disability rating, unless 
the claimant is totally deaf in both ears.

    Effective Date: August 29, 1997.

VAOPGCPREC 33-97

Question Presented

    Are assets which are placed in an irrevocable special needs trust 
includable in the claimant's net worth for purposes of determining 
eligibility for improved pension?

Held

    Assets transferred by a legally competent claimant, or by the 
fiduciary of a leagally incompetent one, to an irrevocable ``living 
trust'' or an estate-planning vehicle of the same nature designed to 
preserve estate assets by restricting trust expenditures to the 
claimant's ``special needs,'' while maximizing the use of governmental 
resources in the care and maintenance of the claimant, should be 
considered in calculating the claimant's net worth for improved-pension 
purposes.

    Effective Date: August 29, 1997.

VAOPGCPREC 34-97

Question Presented

    Does 38 U.S.C. 3104(b) or any other statute or regulation, e.g., 
Department of Labor Rehabilitation Act of 1973 and associated 
regulations, either require or preclude VA from assisting appellant in 
purchasing a computer and related materials for recreational 
activities?

Held

    1. No statute or regulation, including section 702 of the 
Rehabilitation Act of 1973 and its associated regulations, either 
specifically directs VA to authorize or precludes VA from authorizing 
services and assistance of a recreational nature as a component of an 
eligible veteran's program of independent living services and 
assistance under 38 U.S.C. 3120.
    2. VA has the authority, and responsibility, to provide all 
services and assistance deemed necessary on the facts of the particular 
case to enable an eligible veteran participating in such a program to 
live and function independently in his or her family and community 
without, or with a reduced level of, the services of others. This 
includes the authority to approve, when appropriate, services and 
assistance that are in whole or part recreational in character when the 
services are found to be needed to enable or enhance the veteran's 
ability to engage in family and community activities integral to the 
veteran's achieving his or her independent living program goals.

    Effective Date: November 5, 1997.

    By the Direction of the Secretary:
Robert E. Coy,
Acting General Counsel.
[FR Doc. 97-31329 Filed 11-28-97; 8:45 am]
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