Federal Register / Vol. 62, No. 62 / Tuesday, April 1, 1997 / Notices 15565

1A copy of this list may be obtained by

contacting Ms. Neila Sheahan, Assistant General

Counsel, at 202/619–5030, and the address is Room

700, U.S. Information Agency, 301 4th Street, SW.,

Washington, DC. 20547–0001.

1A copy of this list may be obtained by

contacting Ms. Neila Sheahan, Assistant General

Counsel, at 202/619–5030, and the address is Room

700, U.S. Information Agency, 301 4th Street, SW,

Washington, DC 20547–0001

UNITED STATES INFORMATION

AGENCY

Culturally Significant Objects Imported

for Exhibition Determinations

Notice is hereby given of the

following determinations: Pursuant to

the authority vested in me by the Act of

October 19, 1965 (79 Stat. 985, 22 U.S.C.

2459), Executive Order 12047 of March

27, 1978 (43 FR 13359, March 29, 1978),

and Delegation Order No. 85–5 of June

27, 1985 (50 FR 27393, July 2, 1985), I

hereby determine that the ten objects

(See list 1), to be exhibited in the Korean

galleries of the Asian Art Museum in

San Francisco, imported from abroad for

the temporary exhibition without profit

within the United States, are of cultural

significance. These objects are imported

pursuant to a loan agreement with the

foreign lenders. I also determine that the

exhibition or display of the listed

exhibit objects at the Asian Art Museum

of San Francisco from on or about May

2, 1997, through March 1, 1999, is in the

national interest. Public Notice of these

determinations is ordered to be

published in the Federal Register. Dated: March 27, 1997.

Les Jin,

General Counsel.

[FR Doc. 97–8220 Filed 3–31–97; 8:45 am]

BILLING CODE 8230–01–M

Culturally Significant Objects Imported

for Exhibition Determinations

Notice is hereby given of the

following determinations: Pursuant to

the authority vested in me by the Act of

October 19, 1965 (79 Stat. 985, 22 U.S.C.

2459), Executive Order 12047 of March

27, 1978 (43 FR 13359, March 29, 1978),

and Delegation Order No. 85–5 of June

27, 1985 (50 FR 27393, July 2, 1985), I

hereby determine that the objects to be

included in the exhibit, ‘‘Rodin and

Michelangelo’’ (See list 1), imported

from abroad for the temporary

exhibition without profit within the

United States, are of cultural

significance. These objects are imported

pursuant to a loan agreement with the

foreign lenders. I also determine that the

exhibition or display of the listed

exhibit objects at The Philadelphia

Museum of Art from on or about March

30, 1997, through June 22, 1997, is in

the national interest. Public Notice of

these determinations is ordered to be

published in the Federal Register.

Dated: March 27, 1997.

Les Jin,

General Counsel.

[FR Doc. 97–8219 Filed 3–31–97; 8:45 am]

BILLING CODE 8230–01–M

DEPARTMENT OF VETERANS

AFFAIRS

Summary of Precedent Opinions of the

General Counsel.

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 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.

VAOPGCPREC 1–97

Question Presented

Are distributions from an individual

retirement account (IRA) countable as

income for purposes of the improved

pension program, the section 306

pension program, the old law pension

program, and parents’’ dependency and

indemnity compensation (DIC)?

Held

Distributions from an individual

retirement account are fully countable

as income for purposes of the improved

pension program. Ten percent of such

distributions may be excluded from

income for purposes of benefits under

the section 306 pension program,

benefits under the old law pension

program, and parents’’ dependency and

indemnity compensation payable under

38 U.S.C. 1315.

Effective Date: January 8, 1997.

VAOPGCPREC 2–97

Questions Presented

a. May service connection be

established for a disability resulting

from a veteran’s own alcohol or drug

abuse, based on the aggravation of such

disability by a service-connected

disability? b. Does a Board of Veterans’’

Appeals decision based on an erroneous

interpretation of law bind the Veterans

Benefits Administration?

Held

a. Section 8052 of the Omnibus

Budget Reconciliation Act of 1990, Pub.

L. No. 101–508, section 8052, 104 Stat.

1388, 1388–351, prohibits, effective for

claims filed after October 31, 1990, the

payment of compensation for a

disability that is a result of a veteran’s

own alcohol or drug abuse. The

payment of compensation is prohibited

whether the claim is based on direct

service connection or, under 38 CFR

3.310(a), on secondary service

connection of a disability proximately

due to or a result of a service-connected

condition. Further, compensation is

prohibited regardless of whether

compensation is claimed on the basis

that a service-connected disease or

injury caused the disability or on the

basis that a service-connnected disease

or injury aggravated the disability.

b. A Board of Veterans’’ Appeals

decision based on an erroneous

interpretation of law remains final and

binding on all VA components,

including the Veterans Benefits

Administration, in the absence of

reconsideration by the Board.

Effective Date: January 16, 1997.
15566 Federal Register / Vol. 62, No. 62 / Tuesday, April 1, 1997 / Notices

VAOPGCPREC 3–97

Question Presented

Does the nature of damages awarded

in a judgment, settlement, or

compromise affect the amount of

benefits to be offset under 38 U.S.C.

1318(d)?

Held

Section 1318(d) of title 38, United

States Code, requires offset against

survivors’ benefits payable under

section 1318 of amounts received by the

beneficiary pursuant to an award,

settlement, or compromise based on a

claim for damages resulting from the

death of a veteran, i.e., the types of

damages typically recoverable under

state wrongful death statutes, but does

not require offset of amounts received

pursuant to a survival action as

compensation for injuries suffered by

the veteran prior to his or her death.

Effective Date: January 16, 1997.

VAOPGCPREC 4–97

Questions Presented

a. May the action of a Department of

Veterans Affairs (VA) regional office

withholding a portion of a veteran’s

compensation and paying it to the

veteran’s former spouse pursuant to a

state-court support order be considered

an apportionment under 38 U.S.C.

5307?

b. Does the Board of Veterans’’

Appeals (Board) have jurisdiction to

review a VA regional office decision to

withhold a portion of a veteran’s

compensation benefits pursuant to a

state-court support order and 5 C.F.R.

581.103 and 581.402?

Held

a. The action of a VA regional office

withholding a portion of a veteran’s

compensation and paying it to the

veteran’s former spouse, which was

based on a state-court support order

which the regional office misconstrued

as requiring garnishment of the

veteran’s benefits, may not be

considered an apportionment action

under 38 U.S.C. 5307.

b. The Board of Veterans’’ Appeals

does not have jurisdiction to review VA

regional office decisions made for

purposes of responding to state-issued

legal process for garnishment pursuant

to the procedures of 42 U.S.C. 659(a)

and implementing regulations and

generally lacks authority over

challenges to continuing garnishments,

insofar as such challenges involve

issues as to the validity or interpretation

of state-issued legal process. In the

event that a claim relating to VA

garnishment does not challenge the

validity or interpretation of state-issued

legal process, but challenges VA action

which is not subject to resolution in

state garnishment proceedings, the

regional office of jurisdiction and the

Board may entertain the claim.

Effective Date: January 22, 1997.

VAOPGCPREC 5–97

Question Presented

Whether the term ‘‘service trauma’’ in

38 C.F.R. 17.123(c), the regulation

which authorizes VA to provide dental

care to correct service-connected

noncompensable disabilities resulting

from service trauma, includes tooth

extraction performed during the

veteran’s military service?

Held

For the purposes of determining

whether a veteran has Class IIa

eligibility for dental care under 17

C.F.R. 17.123(c), the term ‘‘service

trauma’’ does not include the intended

effects of treatment provided during the

veteran’s military service.

Effective Date: January 22, 1997.

VAOPGCPREC 6–97

Question Presented

Whether VA’s continued payment of

the full amount of benefits to a veteran

who was incarcerated following

conviction for a felony, while awaiting

official information of his imprisonment

in accordance with Veterans Benefits

Administration Adjudication Procedure

Manual M21–1, constitutes an

erroneous award based on

administrative error or error in

judgment pursuant to 38 U.S.C.

5112(b)(10), so that the effective date of

the reduction of the award is the date of

last payment rather than the 61st day of

incarceration as provided by 38 U.S.C.

5313(a).

Held

VA’s continued payment of the full

amount of benefits to a veteran who was

incarcerated following conviction for a

felony, while awaiting official

information of his imprisonment in

accordance with Veterans Benefits

Administration Adjudication Procedure

Manual M21–1, does not constitute an

erroneous award based on

administrative error or error in

judgment pursuant to 38 U.S.C.

5112(b)(10), so that the effective date of

the reduction of the award is the 61st

day of incarceration as provided by 38

U.S.C. 5313(a).

Effective Date: January 28, 1997.

VAOPGCPREC 7–97

Question Presented

Do the provisions of 38 U.S.C. 1151

authorizing monetary benefits for

disability incurred as the ‘‘result of

hospitalization’’ apply to disabilities

incurred during hospitalization but

which are unrelated to a program of

medical treatment?

Held

Compensation under 38 U.S.C. 1151

for injuries suffered ‘‘as the result

of * * * hospitalization’’ is not limited

to injuries resulting from the provision

of hospital care and treatment, but may

encompass injuries resulting from risks

created by any circumstances or

incidents of hospitalization. In

determining whether a specific injury is

a result of hospitalization, guidance may

be drawn in appropriate cases from

judicial decisions under workers’

compensation laws and similar laws

requiring a finding of causation without

regard to fault. An injury caused by a

fall may be considered a result of

hospitalizaion where the conditions or

incidents of hospitalization caused or

contributed to the fall or the severity of

the injury. A fall due solely to the

patient’s inadvertence, want of care, or

preexisting disability generally does not

result from hospitalization. An injury

incurred due to recreational activity

may be considered a result of

hospitalization where VA requires or

encourages participation in the activity,

administers or controls the activity, or

facilitates the activity in furtherance of

treatment objectives. In individual

cases, the question whether an injury

resulted from hospitalization is

essentially an issue of fact to be

determined by the factfinder upon

consideration of all pertinent

circumstances.

Effective Date: January 29, 1997.

VAOPGCPREC 8–97

Question Presented

May compensation be paid, pursuant

to 38 CFR 3.310, for a disability which

is proximately due to or the result of a

disability for which compensation is

payable under 38 U.S.C. 1151?

Held

Disability compensation may be paid,

pursuant to 38 U.S.C. 1151 and 38 CFR

3.310, for disability which is

proximately due to or the result of a

disability for which compensation is

payable under section 1151.

Effective Date: February 11, 1997.
Federal Register / Vol. 62, No. 62 / Tuesday, April 1, 1997 / Notices 15567

VAOPGCPREC 9–97

Questions Presented

1. Can the issuance of a supplemental

statement of the case in response to

evidence received within the one-year

period following the mailing date of

notification of the determination being

appealed extend the time allowed to

perfect an appeal beyond the expiration

of that one-year period?

2. If a supplemental statement of the

case is not or cannot be issued before

the one-year period expires, does the

appeal expire and must such evidence

be considered an attempt to reopen a

finally adjudicated claim?

Held

1. If a claimant has not yet perfected

an appeal and VA issues a supplemental

statement of the case in response to

evidence received within the one-year

period following the mailing date of

notification of the determination being

appealed, 38 U.S.C. 7105(d)(3) and 38

CFR 20.302(c) require VA to afford the

claimant at least 60 days from the

mailing date of the supplemental

statement of the case to respond and

perfect an appeal, even if the 60-day

period would extend beyond the

expiration of the one-year period. To the

extent that 38 CFR 20.304 purports to

provide otherwise, it is invalid and

requires amendment.

2. If VA receives additional material

evidence within the time permitted to

perfect an appeal, 38 U.S.C. 7105(d)(3)

requires VA to issue a supplemental

statement of the case even if the oneyear period following the mailing date

of notification of the determination

being appealed will expire before VA

can issue the supplemental statement of

the case. Furthermore, 38 CFR 3.156(b)

requires that such evidence be

considered in connection with the

pending claim.

Effective Date: February 11, 1997.

VAOPGCPREC 10–97

Question Presented

Does a $1,100 cash distribution from

an Alaska Native Corporation and a

$16,338 dividend distribution by the

corporation to a settlement trust under

the Alaska Native Claims Settlement

Act, both of which were made in 1993,

constitute income to a veteran for

improved-pension purposes?

Held

Pursuant to VAOPGCPREC 12–89 and

VAOPGCPREC 4–93, if the nontaxable

portion of a cash distribution received

by a veteran from an Alaska Native

Corporation represents a distribution

from the Alaska Native Fund, that

portion of the distribution and an

interest in a settlement trust received by

the veteran from the Native Corporation

may be excluded from computation of

income for improved-pension purposes

under 38 U.S.C. 1503(a)(6) as

compensation for relinquishment of an

interest in property. If the taxable

portion of the cash distribution received

by the veteran was derived from

revenues earned by a Native

Corporation, that distribution

constitutes income for improvedpension purposes. Section 506 of Pub.

L. No. 103–446, 108 Stat. 4645, 4664

(1994), which excludes from income

computation for improved-pension

purposes cash distributions not

exceeding $2,000 per annum received

by an individual from an Alaska Native

Corporation, does not apply to

computation of income for improvedpension purposes for periods prior to

November 2, 1994, the date of its

enactment.

Effective Date: February 21, 1997.

By Direction of the Secretary.

Mary Lou Keener,

General Counsel.

[FR Doc. 97–8137 Filed 3–31–97; 8:45 am]

BILLING CODE 8320–01–P

Enhanced-Use Lease of Property at the

Department of Veterans Affairs Medical

Center in Atlanta, Georgia

AGENCY: Department of Veterans Affairs.

ACTION: Notice of Designation.

SUMMARY: The Secretary of the

Department of Veterans Affairs is

designating the Department of Veterans

Affairs Medical Center in Atlanta,

Georgia, for an Enhanced-Use lease

development. The Department intends

to enter into a long-term lease of real

property at the Medical Center with the

Development authority of DeKalb

County for the purpose of collocating

administrative office space for its

Veteran Benefits Administration

Regional Office onto such property and

for other ‘‘in-kind’’ consideration.

FOR FURTHER INFORMATION CONTACT:

Brian A. McDaniel, Office of Asset and

Enterprise Development (189), Veterans

Health Administration, Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC, 20420, (202) 565–

4307.

SUPPLEMENTARY INFORMATION: 38 U.S.C.

Sec 8161 et seq., specifically provides

that the Secretary may enter into an

Enhanced-Use lease, if the Secretary

determines that at least part of the use

of the property under the lease will be

to provide appropriate space for an

activity contributing to the mission of

the Department; the lease will not be

inconsistent with and will not adversely

affect the mission of the Department;

and the lease will enhance the property.

This project meets these requirements.

Approved: March 21, 1997.

Jesse Brown,

Secretary.

Notice of Designation and Intent to

Execute an Enhanced-Use Lease With

the Development Authority of Dekalb

County (Georgia) (Enhanced-Use Lease

Report) for the Collocation of a VBA

Regional Office at the VA Medical

Center, Atlanta, Georgia

Notice

Pursuant to the provisions of 38

U.S.C. 8161, et seq., ‘‘Enhanced Use

Leases of Real Property,’’ this serves as

notice that the Secretary of the

Department of Veterans Affairs (‘‘the

Department’’) intends to designate

approximately six (6) acres (‘‘the

Parcel’’) and other property under the

jurisdiction and control of the

department on the campus of the

Atlanta VA Medical Center for

development under the terms of an

Enhanced-Use lease. The Parcel is

located in the northwest corner of

Clairmont Road and Southern Lane,

adjacent to the VA Medical Center,

Atlanta, DeKalb County, Georgia.

Further, it is the Department’s intent

that after conclusion of successful

negotiations with the Development

Authority of DeKalb County

(‘‘Authority’’), to enter into an

Enhanced-Use lease of the Parcel with

the Authority. Such lease will include a

requirement for collocation of the

Department’s Veterans Benefits

Administration Regional Office in

Atlanta as well as potentially other VA

and non-VA uses on the Parcel. The

Authority, acting pursuant to its

statutory responsibilities, may provide

financing for the development and

select a developer with the approval of

the Department. The developer will

construct and operate the development

which will include both VA and nonVA uses.

This Notice and Report will be

supplemented by a subsequent Report to

be made not less than 30 days prior to

the closing of a development agreement

between the Department, the EnhancedUse lessee (the Authority) and the

developer. The Report will provide

updated information with respect to the

matters contained herein.

Background and Rationale

Under the provisions of 38 U.S.C.

8161, et seq., the Secretary is authorized