31262 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Notices

Frequency of Response: On occasion.

Estimated Number of Respondents:

5,000.

Send comments and

recommendations concerning any

aspect of the information collection to

VA’s OMB Desk Officer, Allison Eydt,

OMB Human Resources and Housing

Branch, New Executive Office Building,

Room 10235, Washington, DC 20503

(202) 395–4650. Please refer to ‘‘OMB

Control No. 2900–0525’’ in any

correspondence.

Dated: March 31, 1998.

By direction of the Secretary.

Donald L. Neilson,

Director, Information Management Service.

[FR Doc. 98–15115 Filed 6–5–98; 8:45 am]

BILLING CODE 8320–01–P

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 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. § 5110, except

insofar as the Secretary may order such

benefits pursuant to his equitable-relief

authority under 38 U.S.C. § 503(a).

Pursuant to 38 U.S.C. § 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. § 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.

§§ 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. §§ 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. § 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.

§§ 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. §§ 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.

§§ 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.
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Notices 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. § 3.805?

(5) The special allowance under 38

U.S.C. § 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. § 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. § 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.

§§ 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.

§ 101(4)(A)(iii).

Held

A home-school program does not

constitute an institution within the

meaning of 38 U.S.C. § 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.

§ 101(4)(A)(iii) because he or she is not

pursuing a course of instruction at an
31264 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Notices

educational institution. Effective Date:

March 19, 1998.

VAOPGCPREC 4–98

Question Presented

Does 38 U.S.C. § 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. § 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.

§ 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,

§ 156, 96 Stat. 1830, 1920 (1982), and 38

C.F.R. § 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

DEPARTMENT OF VETERANS

AFFAIRS

The Enhanced-Use Development of the

VAMC Sioux Falls, SD

AGENCY: Department of Veterans Affairs.

ACTION: Notice of designation.

SUMMARY: The Secretary of the

Department of Veterans Affairs is

designating the Sioux Falls, SD,

Department of Veterans Affairs Medical

Center (VAMC) for an Enhanced-Use

development. The Department intends

to enter into a long-term lease of real

property with the Children’s Care

Hospital and School (CCH&S). The

CCH&S will construct and maintain a

parking area on the site, and will, as

consideration for the lease, provide

specified facilities and services to the

Department at no cost.

FOR FURTHER INFORMATION CONTACT:

Jacob Gallun, Asset and Enterprise

Development Office (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 least 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.