Federal Register / Vol. 66, No. 120 / Thursday, June 21, 2001 / Notices 33309

records, gain access to the records, or

contest the contents of any records

maintained in this system may inquire

in accordance with instructions

appearing in 31 CFR Part 1, Subpart C,

Appendix F. Address inquiries to

Disclosure Officer, Bureau of Engraving

and Printing, 14th and C Streets, SW.,

Washington, DC 20228.

RECORDS ACCESS PROCEDURES:

See ‘‘Notification procedure’’ above.

CONTESTING RECORDS PROCEDURES:

See ‘‘Notification procedure’’ above.

RECORD SOURCE CATEGORIES:

Customers, BEP employees, financial

institutions.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

None.

Treasury/BEP .046

SYSTEM NAME:

Automated Mutilated Currency

Tracking System-Treasury/BEP

SYSTEM LOCATION:

Bureau of Engraving and Printing,

14th and C Streets, SE, Washington, DC

20228.

CATEGORIES OF INDIVIDUALS COVERED BY THE

SYSTEM:

Individuals and financial institutions

sending in mutilated paper currency

claims.

CATEGORIES OF RECORDS IN THE SYSTEM:

Mutilated currency claimants’ names,

addresses, company names, amount of

claims, amount paid, types of currency

and condition of currency.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

5 U.S.C. 301.

PURPOSE(S):

The purpose of the Automated

Mutilated Currency Tracking System is

to maintain historical information and

to respond to claimants’ inquiries, e.g.,

non-receipt of reimbursement, status of

case, etc.

ROUTINE USES OF RECORDS MAINTAINED IN THE

SYSTEM, INCLUDING CATEGORIES OF USERS AND

THE PURPOSES OF SUCH USES:

These records and information in the

records may be used to: (1) Disclose

pertinent information to appropriate

Federal, State, local or foreign agencies

responsible for investigating or

prosecuting the violations of, or for

enforcing or implementing, a statute,

rule, regulation, order, or license, where

the disclosing agency becomes aware of

an indication of a violation or potential

violation of civil or criminal law or

regulation; (2) disclose information to a

Federal, State, or local agency,

maintaining civil, criminal or other

relevant enforcement information or

other pertinent information, which has

requested information relevant to or

necessary to the requesting agency’s or

the bureau’s hiring or retention of an

individual, or issuance of a security

clearance, license, contract, grant, or

other benefit; (3) disclose information to

a court, magistrate, or administrative

tribunal in the course of presenting

evidence, including disclosures to

opposing counsel or witnesses in the

course of civil discovery, litigation, or

settlement negotiations, in response to a

subpoena, or in connection with

criminal law proceedings; (4) provide

information to a congressional office in

response to an inquiry made at the

request of the individual to whom the

record pertains; (5) provide information

to the news media in accordance with

guidelines contained in 28 CFR 50.2

which relate to an agency’s functions

relating to civil and criminal

proceedings; (6) provide information to

unions recognized as exclusive

bargaining representatives under the

Civil Service Reform Act of 1978, 5

U.S.C. 7111 and 7114; (7) provide

information to third parties during the

course of an investigation to the extent

necessary to obtain information

pertinent to the investigation.

POLICIES AND PRACTICES FOR STORING,

RETRIEVING, ACCESSING, RETAINING, AND

DISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:

Records consist of paper records

maintained in file folders and records in

electronic media.

RETRIEVABILITY:

By claimant name, case number,

address or registered mail number.

SAFEGUARDS:

Access is limited to those specific

employees who process the mutilated

currency cases, prepare payment,

research inquiries or maintain the

computer system. In addition, files and

computer data are maintained in a

secured area. Access to electronic

records is by password.

RETENTION AND DISPOSAL:

Active claimant files are maintained

for two years. Inactive files are

maintained for seven years. After seven

years, the files are purged from the

system and then destroyed. (Inactive

files are those for which final payments

have been made.)

SYSTEM MANAGER(S) AND ADDRESS:

Chief, Office of Currency Standards,

Bureau of Engraving and Printing, 14th

and C Streets, SW, Room 344A,

Washington, DC 20228.

NOTIFICATION PROCEDURE:

Individuals wishing to be notified if

they are named in this system of

records, gain access to the records, or

contest the contents of any records

maintained in this system may inquire

in accordance with instructions

appearing in 31 CFR part 1, subpart C,

appendix F. Address inquiries to

Disclosure Officer, Bureau of Engraving

and Printing, 14th and C Streets, SW,

Washington, DC 20228.

RECORD ACCESS PROCEDURE:

See ‘‘Notification procedure’’ above.

CONTESTING RECORD PROCEDURES:

See ‘‘Notification procedure’’ above.

RECORD SOURCE CATEGORIES:

Individuals, banking institutions and

BEP employees.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

None.

[FR Doc. 01–15575 Filed 6–20–01; 8:45 am]

BILLING CODE 4840–01–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 Office of 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. They are being published

to provide the public, and, in particular,

veterans’ benefit claimants and their

representatives, with notice of VA’s

interpretations regarding the legal

matters at issue.

FOR FURTHER INFORMATION CONTACT:

Susan P. Sokoll, Law Librarian,

Department of Veterans Affairs (026H),

810 Vermont Ave., 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

Office of General Counsel to issue

written legal opinions having

precedential effect in adjudications and

appeals involving veterans’ benefits

under the laws administered by VA. The

General Counsel’s interpretations on

33310 Federal Register / Vol. 66, No. 120 / Thursday, June 21, 2001 / Notices

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 which 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 7–2000

Question Presented: (a) Is pursuit of a

degree from a foreign school for a

‘‘Medical Doctor (M.D.)’’ program

always to be considered as evidence of

pursuit of ‘‘a program of education in a

course of instruction beyond the

baccalaureate degree level’’ for purposes

of 10 U.S.C. 16131(c)(1), as provided for

training received prior to November 29,

1993?

(b) If not, what are the guidelines for

determining whether a program of

education is to be considered

undergraduate training or graduate

training for purposes of that section?

Held: For purposes of 10 U.S.C.

16131(c)(1), a Medical Doctor (M.D.)

degree program will be considered to be

a professional degree program offered at

a level beyond the baccalaureate degree,

except when the facts found

demonstrate that the institution offering

the program does not require that the

candidate have been awarded a

bachelor’s degree to be admitted to the

program.

Effective Date: June 16, 2000.

VAOPGCPREC 8–2000

Question Presented: (a) The veteran’s

surviving spouse seeks eligibility for

dependency and indemnity

compensation (DIC) under 38 U.S.C.

1304 and 38 CFR 3.54(c)(1). Where the

veteran contracted a fatal disease during

the first or second enlistment of three

consecutive enlistments, may the date of

termination of his last enlistment be

considered the termination date of the

enrollment in which the fatal disease

was incurred?

(b) If the surviving spouse does not

qualify for DIC, would the lapse of time

between termination of the period of

service and the date of the surviving

spouse’s marriage to the veteran be a bar

to an award of death pension to the

surviving spouse?

Held: (a) In a case where the veteran

served consecutive enlistments and was

discharged from each under conditions

other than dishonorable, if the veteran

was unconditionally discharged from

the earlier enlistments at the end of the

obligated periods of service, then the

veteran’s enlistments would be

considered distinct periods of service

for purposes of determining eligibility

for VA compensation or pension

benefits. However, if the veteran’s

discharges from the earlier enlistments

are considered conditional discharges

under 38 CFR 3.13(a), then the

consecutive enlistment periods ending

in discharges under conditions other

than dishonorable may be considered

one period of service under 38 C.F.R.

3.13(b) for purposes of determining

eligibility for VA compensation or

pension benefits.

(b) Under 38 U.S.C. 1541(f) and 38

C.F.R. 3.54(a), where a surviving spouse

married a Vietnam-era veteran on or

after May 8, 1985, was married to the

veteran for less than one year, and had

no child with the veteran, the surviving

spouse is barred from eligibility for

death pension benefits based on the

marriage to the veteran, notwithstanding

the veteran’s wartime service.

Effective Date: July 25, 2000.

VAOPGCPREC 9–2000

Question Presented: Does the decision

of the United States Court of Appeals for

the Federal Circuit in Hix and Pardue v.

Gober, Nos. 99–7094, –7102 (Fed. Cir.

Sept. 20, 2000), require the Department

of Veterans Affairs (VA) to accept

evidence submitted after a veteran’s

death to establish, under 38 U.S.C. 1311

(a)(2), that the veteran was ‘‘entitled to

receive’’ compensation from VA during

his or her lifetime for a serviceconnected disability that was rated

totally disabling for a continuous period

of at least eight years immediately

preceding death?

Held: Under 38 U.S.C. 1311 (a)(2) and

1318(b), a survivor’s right to certain

dependency and indemnity

compensation (DIC) benefits exists if the

deceased veteran was ‘‘entitled to

receive’’ certain benefits for a specified

period prior to his or her death. In a

series of precedential decisions, the

United States Court of Appeals for

Veterans Claims (CAVC) concluded that

section 1318(b) authorizes payment of

DIC when evidence in the veteran’s

claims file or in the custody of the

Department of Veterans Affairs (VA)

prior to the veteran’s death establishes

that the veterans was ‘‘hypothetically’’

entitled to the specified benefits. In Hix

v. West, 12 Vet. App. 138 (1999), the

CAVC concluded that section 1311(a)(2)

must be construed in the same manner

as section 1318(b). VA appealed the

decision in Hix to the United States

Court of Appeals for the Federal Circuit,

arguing that entitlement to DIC under

section 1311(a)(2) could not be

predicated on a veteran’s ‘‘hypothetical’’

entitlement, but could exist only if the

veteran’s entitlement were established

by decisions during the veteran’s

lifetime or by correction of clear and

unmistakable error in decisions

rendered during the veteran’s lifetime.

In Hix and Pardue v. Gober, Nos. 99–

7094, –7102 (Fed. Cir. Sept. 20, 2000),

the Federal Circuit stated: ‘‘[w]e affirm

the ruling of the [CAVC] that the

‘entitled to receive’ provision of section

1311(a)(2) requires de novo

determination of the veteran’s disability,

upon the entirety of the record

including any new evidence presented

by the surviving spouse.’’ To the extent

the Federal Circuit’s decision refers to

consideration of new evidence

presented by the surviving spouse, it

appears to conflict with statements in

CAVC decisions indicating that

‘‘hypothetical’’ entitlement is to be

determined upon the evidence that was

in the veteran’s claims file or in VA or

the CAVC. The issue before the Federal

Circuit in Hix was whether the CAVC

erred in concluding that section

1311(a)(2) authorizes increased DIC in

cases where the veteran’s entitlement to

certain benefits is merely

‘‘hypothetical.’’ The ancillary issue of

whether evidence may be submitted

after a veteran’s death to establish the

veteran’s ‘‘hypothetical’’ entitlement to

certain benefits was not raised or argued

by the parties before the Federal Circuit

and the Court’s isolated statement

concerning that issue was not necessary

to its decision on the appeal.

For these reasons, the Federal

Circuit’s statement in Hix concerning

the consideration of new evidence is

dicta, and it is not binding on VA. Thus,

the Federal Circuit’s decision in Hix

does not require VA to accept evidence

submitted after a veteran’s death offered

to establish, under 38 U.S.C. 1311(a)(2),

that the veteran was ‘‘entitled to

receive’’ compensation from VA during

his or her lifetime for a serviceconnected disability that was rated

totally disabling for a continuous period

of at least eight years immediately

preceding death.

Effective Date: December 8, 2000.

VAOPGCPREC 10–2000

Question Presented: Does the Board of

Veterans’ Appeals (the Board) have

jurisdiction to consider an appeal by a

Federal Register / Vol. 66, No. 120 / Thursday, June 21, 2001 / Notices 33311

State home disputing a decision by the

Secretary of the United States

Department of Veterans Affairs

(Secretary) that the State home is not

eligible for per diem payments from the

Department of Veterans Affairs (VA)?

Held: The Secretary’s Decision that

the State home does not meet VA’s

nursing home standards, is not

recognized by VA and, therefore, is not

eligible for VA per diem payments, is a

decision that falls within the limitation

on judicial review set forth in section

511(a). Pursuant to 38 U.S.C. 7104, the

jurisdiction of the Board extends to all

questions decided by the Secretary

under section 511(a). Therefore, the

Board has jurisdiction to consider this

appeal.

Effective Date: December 14, 2000.

VAOPGCPREC 11–2000

Question Presented: Do the provisions

of Pub. L. 106–475, for which that act

does not specify an effective date, apply

to claims filed before the date of

enactment of the act but not finally

decided as of that date?

Held: On November 9, 2000, the

President approved the Veterans Claims

Assistance Act of 2000, Public Law 106–

475, 114 Stat. 2096, which made several

changes to statutory provisions

governing Department of Veterans

Affairs (VA) benefit claims, VA’s duties

to inform claimants about the

completion and substantiation of their

claims, and VA’s duties to assist

claimants in obtaining evidence

necessary to substantiate their claims.

Among other things, the act amended 38

U.S.C. 5102, 5103, and 5107 and created

new 38 U.S.C. 5100 and 5103A. Section

7(a) of the act, 114 Stat. At 2099,

specifies that section 5107 as amended

applies to claims filed on or after the

date of the act’s enactment or to claims

filed before then but not finally decided

as of that date. However, the act does

not specify the effective date of the

other provisions of title 38, United

States Code, created or amended by the

act. We conclude that all of the act’s

provisions apply to claims filed on or

after November 9, 2000, as well as to

claims filed before then but not finally

decided as of that date.

Effective Date: November 27, 2000.

VAOPGCPREC 1–2001

Question Presented: Should a

retroactive award of compensation that

results from a finding of clear and

unmistakable error (CUE) be

retroactively attributed to the estate of a

veterans for purposes of determining

whether 38 U.S.C. 5503 and 38 C.F.R.

3.557 bar payment of compensation to

the veteran for a prior period during

which the veteran was hospitalized at

government expense?

Held: Prior to a recent statutory

amendment, the provisions of 38 U.S.C.

5503(b)(1)(A) and 38 C.F.R. 3.557(b)

required that compensation not be paid

in the case of an incompetent veteran

without spouse or child who is being

furnished hospital treatment or

institutional or domiciliary care at

government expense when the veteran’s

estate exceeds $1,500, until such time as

the estate is reduced to $500. A

retroactive award of compensation

based on a finding of clear and

unmistakable error in a prior decision

denying service connection should not

be retroactively attributed to the estate

of the veteran for purposes of

determining whether section

5503(b)(1)(A) and section 3.557(b) bar

payment of compensation for the period

subsequent to the effective date of the

award of service connection and prior to

the date of the veteran’s release from a

government facility.

Effective Date: January 4, 2001.

VAOPGCPREC 2–2001

Question Presented: May a veteran

qualify for MGIB benefits under 38

U.S.C. 3011(a)(1)(B) and 38 C.F.R.

21.7020(b)(5) when the individual had

an interruption of active duty service

after June 30, 1985, and before July 1,

1988, which was of less than 90 days in

length?

Held: (a) An individual having

chapter 34 eligibility on December 31,

1989, must serve 3 continuous years on

active duty after June 30, 1985, to

become entitled to MGIB benefits under

38 U.S.C. 3011(a)(1)(B). Although an

interruption of less than 90 days during

that period would not constitute a

‘‘break in service’’ under 38 C.F.R.

21.7020(b)(5), it would violate the

requirement that the individual have

served 3 continuous years on active

duty after June 30, 1985, since an

interruption of any length (following a

complete separation from service)

would not meet the definition of

‘‘continuous active duty’’ under 38

C.F.R. 21.7020(b)(6).

(b) To qualify for MGIB entitlement

under 38 U.S.C. 3011(a)(1)(B)(I), the

individual must have served

continuously on active duty from July 1,

1985, to June 30, 1988. Except as

provided for certain cases of ‘‘early out’’

discharge covered under clause (ii) of

that statute, the individual could not

earn entitlement under chapter 30 based

on any other period of continuous active

duty service.

Effective Date: January 9, 2001.

VAOPGCPREC 3–2001

Questions Presented: (a) Who, if

anyone, in the Department of Veterans

Affairs (VA) other than the Secretary is

authorized to move for readjudication of

a finally denied claim under section 7(b)

of the Veterans Claims Assistance Act of

2000?

(b) Who should first readjudicate such

a claim, the entity that last adjudicated

the claim or the agency of original

jurisdiction?

(c) If a previously appealed claim is

readjudicated under section 7(b), what

must the claimant do, if anything, to

appeal the decision upon

readjudication?

(d) Must the Board of Veterans’

Appeals vacate its prior decision on a

claim that is readjudicated under

section 7(b)?

Held: Under section 7(b) of the

Veterans Claims Assistance Act of 2000,

Public Law 106–475, § 7(b), 114 Stat.

2096, 2099, the Department of Veterans

Affairs (VA), upon request of the

claimant or upon the motion of the

Secretary of Veterans Affairs, must

readjudicate certain finally decided

claims ‘‘as if the denial or dismissal had

not been made.’’ Supervisory or

adjudicative personnel of VA’s Veterans

Benefits Administration are authorized

to initiate such readjudication on behalf

of the Secretary, and other VA

organizational elements, such as the

Board of Veterans’ Appeals (Board) and

the Office of General Counsel, may refer

to VBA cases involving those finally

decided claims. If readjudication under

section 7(b) is timely initiated, the first

readjudication of the claim must be

made by the agency of original

jurisdiction. If the claimant wishes to

appeal the decision made on

readjudication, he or she must file a

timely notice of disagreement with the

decision, even if the original decision

had been appealed. The Board of

Veterans’ Appeals need not vacate any

prior Board decision on a claim being

readjudicated under section 7(b).

Effective Date: January 22, 2001.

VAOPGCPREC 4–2001

Question Presented: Do 38 C.F.R.

3.322(a) and 4.22 apply to the rating of

a disability for which compensation is

payable under 38 U.S.C. 1151 as if the

disability were service connected?

Held: Sections 3.322(a) and 4.22 of

title 38, Code of Federal Regulations,

require that, in rating disabilities

aggravated by service, the degree of

disability existing at the time of

entrance into service, if ascertainable, be

deducted from the present degree of

disability unless the present degree of

33312 Federal Register / Vol. 66, No. 120 / Thursday, June 21, 2001 / Notices

disability is total, in which case no

deduction is made. These provisions

apply to the rating of disabilities

compensated under 38 U.S.C. 1151,

which, before its amendment effective

October 1, 1997, authorized

compensation for additional disability

resulting from injury or aggravation of

an injury as a result of Department of

Veterans Affairs hospitalization,

medical or surgical treatment,

examination, or pursuit of a course of

vocational rehabilitation, in the same

manner as if the additional disability

were service connected.

Effective Date: February 2, 2001.

VAOPGCPREC 5–2001

Question Presented: (a) For claims

filed after November 25, 1991, and

before October 1, 1997, does 38 U.S.C.

§ 1151 authorize compensation for

additional disability alleged to have

resulted from the omission or failure by

the Department of Veterans Affairs (VA)

to diagnose or treat an underlying

disease or injury, or does section 1151

authorize compensation only for

disability resulting from an act of

commission by VA?

(b) If section 1151 authorizes

compensation, with respect to claims

filed during that time period, based on

VA’s omission or failure to diagnose or

treat an underlying disease or injury,

what are the essential elements of such

a claim that must be established in order

for a claimant to prevail?

Held: (a) Under the provisions of 38

U.S.C. 1151 applicable to claims filed

prior to October 1, 1997, benefits may be

paid for disability or death attributable

to VA’s failure to diagnose and/or treat

a preexisting condition when VA

provides treatment or an examination.

Disability or death due to a preexisting

condition may be viewed as occurring

‘‘as a result of’’ the VA treatment or

examination only if a physician

exercising the degree of skill and care

ordinarily required of the medical

profession reasonably should have

diagnosed the condition and rendered

treatment which probably would have

avoided the resulting disability or death.

(b) The factual elements necessary to

support a claim under section 1151

based on failure to diagnose or treat a

preexisting condition may vary with the

facts of each case and the nature of the

particular injury and cause alleged by

the claimant. As a general matter,

however, entitlement to benefits based

on such claims would ordinarily require

a determination that: (1) VA failed to

diagnose and/or treat a preexisting

disease or injury; (2) a physician

exercising the degree of skill and care

ordinarily required of the medical

profession reasonably should have

diagnosed the condition and rendered

treatment; and (3) the veteran suffered

disability or death which probably

would have been avoided if proper

diagnosis and treatment had been

rendered.

Effective Date: February 5, 2001.

VAOPGCPREC 6–2001

Question Presented: (a) Do 38 U.S.C.

3104(a)(15) and 38 CFR § 21.160 allow

for, or preclude, authorization of the

construction of an enclosed studio on

the rear of a veteran’s home as a

component of an eligible veteran’s

program of independent living (IL)

services?

(b) If those provisions do allow for

authorization of such construction, may

the construction be authorized

independent of, and in addition to, the

benefits provided under 38 U.S.C.

1717(a)(2) and 2101?

Held: (a) The Secretary has authority

to provide the particular housing

improvement services claimed in this

case as part of the eligible veteran’s

independent living services program of

rehabilitation under section 3120 of

chapter 31, title 38, United States Code,

if the Secretary finds the services are

essential to enable the veteran to

achieve maximum independence in

daily living. See, also, 38 U.S.C.

3101(4), 3104(a)(15), and 38 CFR 21.160.

(b) The Secretary, pursuant to 38

U.S.C. 3104(a)(9), has authority to

provide a chapter 31 participant who is

in need of the home health services

described in 38 U.S.C. 1717(a)(2) with

those services regardless of whether the

participant has remaining eligibility

therefor under section 1717(a)(2).

(c) Since the IL services claimed by

the veteran in this case are not the same

as the services authorized him under

chapter 21 of title 38, the prohibition in

section 2104 of that chapter against

authorizing the latter services more than

once to the same veteran has no

application.

Effective Date: February 5, 2001.

VAOPGCPREC 7–2001

Question Presented: Whether a

recipient of military retired or

retirement pay whom VA has

determined is entitled to compensation

under title 38, United States Code, and

who has submitted a waiver of

entitlement to that pay is a payee for

purposes of 38 U.S.C. 3012(b)(6) (1964)

(currently 38 U.S.C. 5112(b)(6)).

Held: (a) A ‘‘payee’’ for purposes of 38

U.S.C. 3012(b)(6) (1964) (currently 38

U.S.C. 5112(b)(6)) is a person who is in

continuous receipt of VA compensation,

dependency and indemnity

compensation, or pension. The effective

date of an award of VA compensation to

a recipient of military pay or retirement

pay who has submitted a waiver of

entitlement to that pay is the date upon

which the service department reduces

such pay.

(b) Section 3012(b)(6) of title 38,

United States Code (1964) (currently 38

U.S.C. 5112(b)(6)), does not apply where

there is no reduction in the amount of

compensation being paid to a claimant.

Therefore, if a veteran’s evaluation is

reduced by VA while the veteran is

receiving military retired or retirement

pay during the period in which a service

department is processing a waiver of

such pay, section 3012(b)(6) is not

applicable because, at the time of the

reduction, the reduction decision does

not result in the veteran getting any less

retired or retirement pay than the

veteran had been receiving before the

decision was made.

Effective Date: February 14, 2001.

VAOPGCPREC 8–2001

Question Presented: Whether a former

member of the Naval Reserve who

reports having been sexually assaulted

on two occasions during inactive duty

training and who alleges suffering from

resulting post-traumatic stress disorder

(PTSD) may be considered to have been

disabled by an injury in determining

whether the member had active service

for purposes of 38 U.S.C. 101(24)?

Held: Under 38 U.S.C. 101(2) and

(24), inactive duty training may provide

a basis for veteran status for purposes of

benefits administered by the

Department only if the individual

incurred disability or death from an

injury incurred or aggravated in line of

duty. An individual who suffers from

post-traumatic stress disorder as a result

of a sexual assault that occurred during

inactive duty training may be

considered disabled by an ‘‘injury’’ for

purposes of section 101(2) and (24).

Effective Date: February 26, 2001.

VAOPGCPREC 9–2001

Question Presented: If an individual

has multiple periods of active duty

military service, but the last such period

does not culminate with an ‘‘honorable’’

discharge, when does the individual’s

ten year period of eligibility to receive

benefits under the Montgomery GI

Bill—Active Duty end?

Held: In the basic case, an individual

who is awarded an ‘‘honorable’’

discharge upon completion of the

minimum period of active duty required

for MGIB benefits entitlement under 38

U.S.C. 3011 may use those benefits

within 10 years after the date of such

discharge. If that individual

Federal Register / Vol. 66, No. 120 / Thursday, June 21, 2001 / Notices 33313

subsequently serves one or more

additional periods of active duty

(generally, of not less than 90 days),

then the individual would have 10 years

from the date of the individual’s last

discharge from active duty within

which to use his or her MGIB benefits.

Provision of such later delimiting period

is not conditioned upon the individual’s

having been awarded an ‘‘honorable’’

discharge from his or her last period of

active duty.38 U.S.C. 3031(a) and (g).

Effective Date: March 20, 2001.

VAOPGCPREC 10–2001

Questions Presented: Whether a

veteran is subject to reduction of

Department of Veterans Affairs (VA)

compensation and pension benefits,

under 38 U.S.C. 5313 and 1505, where

the veteran is convicted of a crime in a

foreign country, incarcerated abroad,

and subsequently transferred to a penal

institution of the United States to serve

the remainder of the criminal sentence?

What is the effective date of

reduction, under 38 U.S.C. 5313 and

1505, where a veteran is convicted of a

crime in a foreign country and

incarcerated abroad, then transferred to

a penal institution in the United States

to serve the remainder of the criminal

sentence?

Held: 1. A veteran is not subject to

reduction of compensation and pension

benefits, under 38 U.S.C. 5313 and

1505, while incarcerated in a foreign

prison. However, a veteran who is

transferred to a Federal, State, or local

penal institution in the United States to

serve the remainder of a sentence for a

foreign conviction of an offense which

is equivalent to a felony (or a

misdemeanor under section 1505) under

the laws of the United States is

thereafter subject to reduction of

compensation and pension benefits

under 38 U.S.C. 5313 and 1505.

2. The effective date of reduction is

the sixty-first day of incarceration in a

Federal, State, or local penal institution

in the United States.

Effective Date: May 24, 2001.

Withdrawn Precedent Opinion

VAOPGCPREC 4–99

1. This is to inform you that our

opinion in VAOPGCPREC 4–99 is being

withdrawn due to the recent enactment

of the Veterans Claims Assistance Act of

2000, Public Law No. 106–475, 114 Stat.

2096. Under former 38 U.S.C. 5107(a),

as interpreted by the United States

Court of Appeals for Veterans Claims

and the United States Court of Appeals

for the Federal Circuit, a claimant was

required to submit ‘‘evidence sufficient

to justify a belief by a fair and impartial

individual that the claim is well

grounded’’ before the Department of

Veterans Affairs (VA) had any obligation

to assist the claimant in developing the

facts pertinent to the claim. Our opinion

in VAOPGCPREC 4–99 responded to a

question from the Chairman of the

Board of Veterans’ Appeals concerning

the application of the well-grounded

claim requirement to claims for

compensation under 38 U.S.C. 1117 and

38 CFR 3.317 for disability due to an

undiagnosed illness suffered by a

veteran of the Persian Gulf War. Our

opinion concluded that claimants

seeking such benefits were required to

submit competent evidence with respect

to four factual elements in order to

establish a well-grounded claim. But see

Neumann v. West, 14 Vet. App. 12, 22–

23 (2000) (stating a slightly different

formulation of four factual elements of

well-grounded claims under 38 U.S.C.

1117 and 38 CFR 3.317).

2. On November 9, 2000, the

President signed into law the Veterans

Claims Assistance Act of 2000. In

pertinent part, this statute revised 38

U.S.C. 5107(a) by deleting the

requirement that a claimant must

submit a ‘‘well grounded’’ claim for

benefits in order to obtain assistance

from VA in developing the facts

pertinent to the claim. This change

applies to all future claims, as well as

to any previously-filed claim which was

not finally denied as of November 9,

2000, when the Veterans Claims

Assistance Act was signed into law.

Additionally, any individual whose

claim was finally denied as being not

‘‘well grounded’’ between July 14, 1999,

and November 9, 2000, may have their

claim readjudicated under the new

statute upon request to VA made within

two years after November 9, 2000.

3. Because the Veterans Claims

Assistance Act removes from 38 U.S.C.

§ 5107(a) the well-grounded claim

requirement upon which the analysis

and conclusion in VAOPGCPREC 4–99

were based, that opinion is hereby

withdrawn.

Effective Date: November 28, 2000.

Dated: June 5, 2001.

By Direction of the Secretary.

Tim S. McClain,

General Counsel.

[FR Doc. 01–15653 Filed 6–20–01; 8:45 am]

BILLING CODE 8320–01–U