[Federal Register Volume 62, Number 62 (Tuesday, April 1, 1997)]
[Notices]
[Pages 15565-15567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8137]


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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 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.

[[Page 15566]]

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.

[[Page 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 one-year 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 improved-pension 
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 improved-pension 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