[Federal Register Volume 63, Number 109 (Monday, June 8, 1998)]
[Notices]
[Pages 31262-31264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15116]


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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 35-97

Question Presented

    Does the failure of the Department of Veterans Affairs (VA) to 
render a timely decision regarding entitlement to service-connected 
burial benefits following a veteran's death in 1977 provide a basis for 
awarding dependency and indemnity compensation (DIC) retroactive to the 
date of death?

Held

    The failure of the Department of Veterans Affairs to render a 
timely decision regarding entitlement to service-connected burial 
benefits following a veteran's death may not provide a basis for 
awarding retroactive payment of dependency and indemnity compensation 
(DIC) in a manner inconsistent with the express requirements of 38 
U.S.C. Sec. 5110, except insofar as the Secretary may order such 
benefits pursuant to his equitable-relief authority under 38 U.S.C. 
Sec. 503(a). Pursuant to 38 U.S.C. Sec. 5110(a) and (d)(1), an award of 
DIC may be made effective from the month of death only if the claimant 
filed an application for DIC within one year after the date of death, 
or filed an informal claim for DIC within such period, followed by a 
timely formal application for DIC which may, under 38 C.F.R. 
Sec. 3.155(a), be deemed to have been filed within one year after the 
date of death.
    Effective Date: December 9, 1997.

VAOPGCPREC 36-97

Questions Presented

    a. Whether Diagnostic Code (DC) 5293, intervertebral disc syndrome 
(IDS), is based upon loss of range of motion, and therefore whether 38 
C.F.R. Secs. 4.40 and 4.45 are applicable in determining the extent of 
a veteran's disability due to IDS.
    b. Whether 38 C.F.R. Secs. 4.40 and 4.45 must be considered where a 
veteran receives less than the maximum schedular rating under DC 5293, 
but that rating corresponds to the maximum schedular rating under 
another diagnostic code pertaining to limitation of motion.
    c. Whether 38 C.F.R. Sec. 3.321(b) must be considered when a 
veteran receives less than the maximum rating under DC 5293, 
irrespective of whether 38 C.F.R. Secs. 4.40 and 4.45 must be applied 
in such a case.

Held

    1. Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS), 
involves loss of range of motion because the nerve defects and 
resulting pain associated with injury to the sciatic nerve may cause 
limitation of motion of the cervical, thoracic, or lumbar vertebrae. 
Therefore, pursuant to Johnson v. Brown, Vet. App. 7 (1996), 38 C.F.R. 
Secs. 4.40 and 4.45 must be considered when a disability is evaluated 
under this diagnostic code.
    2. When a veteran has received less than the maximum evaluation 
under DC 5293 based upon symptomatology which includes limitation of 
motion, consideration must be given to the extent of the disability 
under 38 C.F.R. Secs. 4.40 and 4.45, even though the rating corresponds 
to the maximum rating under another diagnostic code pertaining to 
limitation motion.
    3. The BVA must address entitlement to an extraschedular rating 
under 38 CFR 3.321(b)(1) if there is evidence of ``exceptional or 
unusual'' circumstances indicating that the rating schedule, including 
38 CFR 4.40, 4.45, and 4.71a, may be inadequate to compensate for the 
average impairment of earning capacity due to IDS, regardless of the 
fact that a veteran may have received the maximum schedular rating 
under a diagnostic code based upon limitation of motion.
    Effective Date: December 12, 1997.

VAOPGCPREC 37-97

Question Presented

    Are attorney fees payable in cases in which the decision of the 
Board of Veterans' Appeals was on the issue of whether a claimant had 
submitted new and material evidence sufficient to reopen a claim?

Held

    In a case where BVA has denied reopening of a claim for service 
connection based on failure to submit new and material evidence and 
that determination is reversed by CVA and service connection is 
ultimately allowed, attorney fees may be paid. In a claim where BVA has 
determined that new and material evidence has been submitted and has 
remanded the claim to the AOJ, attorney fees may not be paid because a 
final decision within the meaning of 38 U.S.C. 5904(c)(1) is lacking.
    Effective Date: December 16, 1997.

[[Page 31263]]

VAOPGCPREC 38-97

Question Presented

    Can the misapplication of, or failure to apply, a statutory or 
regulatory evidentiary presumption in a prior final decision constitute 
new and material evidence for purposes of reopening a previously denied 
claim pursuant to 38 U.S.C. 5108?

Held

    The misapplication of, or failure to apply, a statutory or 
regulatory evidentiary presumption in a prior final decision cannot, in 
itself, constitute ``new and material evidence'' within the meaning of 
38 U.S.C. 5108 for purposes of reopening a claim.
    Effective Date: December 17, 1997.

VAOPGCPREC 39-97

Question Presented

    Are reparations paid to a veteran's spouse, a victim of Nazi 
persecution, by the Federal Republic of Germany (FRG) countable as 
income for purposes of Department of Veterans Affairs (VA) pension 
programs and parents' dependency and indemnity compensation (DIC)?

Held

    Reparations paid by the Federal Republic of Germany to individuals 
who were victims of Nazi persecution are not countable as income or net 
worth for purposes of determining eligibility for section 306, old law, 
and improved pension, and parents' dependency and indemnity 
compensation.
    Date: December 22, 1997.

VAOPGCPREC 40-97

Question Presented

    a. Do the amendments to 38 U.S.C. 1151 made by section 422(a) of 
Pub. L. No. 104-204 apply in claims filed before October 1, 1996, which 
are still pending on October 1, 1997?
    b. Do those amendments apply in claims filed on or after October 1, 
1996, but before October 1, 1997, which are still pending on the latter 
date?

Held

    All claims for benefits under 38 U.S.C. 1151, which governs 
benefits for persons disabled by treatment or vocational 
rehabilitation, filed before October 1, 1997, must be adjudicated under 
the provisions of section 1151 as they existed prior to that date.
    Effective Date: December 31, 1997.

VAOPGCPREC 1-98

Question Presented

    Does 38 U.S.C. 7111, which Pub. L. No. 105-111 added to title 38, 
apply to claims pending on the date Pub. L. No. 105-111 was enacted?

Held

    Section 7111 of title 38, United States Code, as added by Pub. L. 
No. 105-111, under which a claimant is entitled to a Board of Veterans 
Appeals decision on the merits on a request for revision of a prior 
Board decision on the grounds of clear and unmistakable error, applies 
to claims pending on the date Pub. L. No. 105-111 was enacted.
    Effective Date: January 13, 1998.

VAOPGCPREC 2-98

Questions Presented

    a. For claims filed after October 31, 1990, based on service 
connection of disability or death resulting from a veteran's own 
alcohol or drug abuse, does section 8052 of the Omnibus Budget 
Reconciliation Act of 1990 preclude entitlement to the following 
benefits:
    (1) Dependents' educational assistance under 38 U.S.C. ch. 35?
    (2) Burial benefits?
    (3) Accrued benefits?
    (4) Surviving spouses' loan guaranty benefits under 38 C.F.R. 
Sec. 3.805?
    (5) The special allowance under 38 U.S.C. Sec. 1312?
    (6) Medical care under the Department of Veterans Affairs Civilian 
Health and Medical Program (CHAMPVA)?
    b. If, based on a claim filed on or before October 31, 1990, 
service connection has been established for a disability that resulted 
from a veteran's own alcohol or drug abuse, what effect does section 
8052 of the Omnibus Budget Reconciliation Act of 1990 have on a claim 
for an increased rating filed after October 31, 1990?

Held

    a. With respect to claims filed after October 31, 1990, 38 U.S.C. 
Sec. 105(a), as amended by section 8052(a)(1) of the Omnibus Budget 
Reconciliation Act of 1990 and implemented by 38 C.F.R. 3.1(m), 
precludes, for purposes of all VA benefits, a finding that an injury or 
disease that was a result of a person's own alcohol or drug abuse was 
incurred or aggravated in line of duty. Thus, for purposes of all VA 
benefits, eligibility for which requires a service-connected disability 
or death, section 105(a) precludes service connection of a disability 
resulting from alcohol or drug abuse on the basis of the disability's 
incurrence or aggravation in service or of a death resulting from such 
a disability. However, for purposes of all such VA benefits other than 
disability compensation, the amendments made by section 8052 do not 
preclude eligibility based on a disability, or death resulting from 
such a disability, secondarily service connected under 38 C.F.R. 
Sec. 3.310(a) as proximately due to or the result of a service-
connected disease or injury.
    b. Claims for increase filed after October 31, 1990, are subject to 
the amendments made by section 8052(a) of the Omnibus Budget 
Reconciliation Act of 1990. If, based on a claim filed on or before 
October 31, 1990, service connection has been established for a 
disability that resulted from a veteran's own alcohol or drug abuse, 38 
U.S.C. Secs. 1110 and 1131, as amended by section 8052(a), prohibit the 
payment of any increase in compensation for that disability, based on a 
claim for increase filed after October 31, 1990, including, for 
example, a claim for an increased rating or a claim for increase based 
on acquisition of a dependent. Sections 1110 and 1131 do not, however, 
prohibit continuation or reduction, in accordance with the facts, of an 
award of compensation for the disability established on the basis of a 
claim filed on or before that date. Further, sections 1110 and 1131 do 
not prohibit payment of an increase in compensation, such as a cost-of-
living adjustment; that would become effective without the filing of a 
claim.
    Effective Date: February 10, 1998

VAOPGCPREC 3-98

Question Presented

    Whether a person who is between 18 and 23 years of age and is 
pursuing a high school education in a home-school program is pursuing a 
course of instruction at an educational institution for purposes of 38 
U.S.C. Sec. 101(4)(A)(iii).

Held

    A home-school program does not constitute an institution within the 
meaning of 38 U.S.C. Sec. 101(4)(A)(iii) and 104(a) because the program 
terminates when the child completes his or her course of instruction or 
withdraws, does not have an ongoing enrollment, and is operated for the 
sole purpose of serving the needs of a particular student. Therefore, a 
person who is between 18 and 23 years of age and is being educated in a 
home-school program is not a child for purposes of 38 U.S.C. 
Sec. 101(4)(A)(iii) because he or she is not pursuing a course of 
instruction at an

[[Page 31264]]

educational institution. Effective Date: March 19, 1998.

VAOPGCPREC 4-98

Question Presented

    Does 38 U.S.C. Sec. 2305 have any application in claims for burial 
benefits involving veterans who served in the organized military forces 
of the Commonwealth of the Philippines while such forces were in the 
service of the United States Armed Forces during World War II?

Held

    The saving provision currently codified at 38 U.S.C. Sec. 2305 
preserved potential eligibility for burial benefits under chapter 23 of 
title 28, United States Code, for individuals who could have qualified 
for those benefits under ``the laws in effect on December 31, 1957.'' 
The statute governing benefits eligibility based upon service in the 
Philippine Commonwealth Army in World War II that was in effect on that 
date did not confer potential eligibility for burial benefits for 
individuals with such service. Consequently, section 2305 has no 
application in claims for burial benefits based on service in the 
Philippine Commonwealth Army during World War II. Effective Date: April 
1, 1998

VAOPGCPREC 5-98

Questions Presented

    a. What is the proper disposition of funds derived from Department 
of Veterans Affairs (VA) benefits and held by a legal custodian, when a 
beneficiary dies intestate but with known heirs?
    b. Does VA have a legal duty to supervise estate assets derived 
from VA benefits and in the hands of a legal custodian, after the death 
of the beneficiary?
    c. Does VA have authority to distribute a deceased beneficiary's 
estate assets, derived from VA benefit payments, and, if so, how should 
the distribution be made?

Held

    When a veteran or other VA beneficiary dies without a will but with 
known heirs, VA-derived funds held by a legal custodian should be 
distributed by an appropriate estate administrator in accordance with 
applicable state law governing intestate succession. VA is not 
authorized to recover such funds and distribute them to the 
beneficiary's heirs. Generally, VA is authorized to supervise the 
estate only to the extent necessary to assure that the fiduciary 
fulfilled his or her responsibilities to the beneficiary and to assure 
preservation of assets which may be reclaimed by the Government 
pursuant to 38 U.S.C. Sec. 5502(e).
    Effective Date: April 2, 1998.

VAOPGCPREC 6-98

Question Presented

    If a veteran both challenges the validity of a debt assessed by the 
Department of Veterans Affairs (VA) and, in the alternative seeks 
waiver of such debt, must VA first fully adjudicate the debt validity 
issue, and the veteran exhaust all appeals on that issue, before waiver 
may be considered?

Held

    When a veteran both challenges the validity of a debt and seeks 
waiver of the debt, the Regional Office must first fully review the 
debt's validity and, if the office believes the debt to be valid, 
prepare a written decision fully justifying the validity of the debt. 
At that point, the veteran's request for waiver should be referred to 
the Committee on Waivers and Compromises. If waiver is denied, the 
veteran must be informed of his or her right to appeal both decisions 
to the Board of Veterans Appeals.
    Effective Date: April 24, 1998

VAOPGCPREC 7-98

Questions Presented:

    a. Where eligibility under the Restored Entitlement Program for 
Survivors (REPS) is based on service connection established under a 
Department of Veterans Affairs (VA) regulation establishing a 
presumption of service connection for a disease, is the effective date 
of the award of REPS benefits limited by the effective date of the 
regulation establishing the presumption?
    b. If, pursuant to the Nehmer stipulation, an award of dependency 
and indemnity compensation (DIC) is made effective prior to the 
effective date of the VA regulation establishing presumptive service 
connection for the cause of death, is the effective date of an award of 
REPS benefits also governed by the Nehmer stipulation?

Held

    In the case of a member or former member of the Armed Forces who 
died on active duty prior to August 13, 1981, or who died from a 
service-connected disability which was incurred or aggravated in 
service before such date, the Department of Veterans Affairs (VA) is 
authorized, under Pub. L. No. 97-377, Sec. 156, 96 Stat. 1830, 1920 
(1982), and 38 C.F.R. Sec. 3.812, to award benefits under the Restored 
Entitlement Program for Survivors (REPS) to the member or former 
member's surviving spouse or child for all periods in which such spouse 
or child meet the eligibility requirements for such benefits. If a 
claimant meets the statutory requirements governing eligibility for 
REPS benefits, the fact that service connection for a former member's 
death has been established pursuant to regulatory presumptions of 
service connection which became effective subsequent to the initial 
period of eligibility does not limit VA's authority to award REPS 
benefits retroactive for all periods of eligibility.
    Effective Date: May 4, 1998.
John H. Thompson,
Acting General Counsel.
[FR Doc. 98-15116 Filed 6-5-98; 8:45 am]
BILLING CODE 8320-01-M