19808 Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Notices

Form Number: IRS Form 3520.

Type of Review: Extension.

Title: Creation of or Transfers to Certain

Foreign Trusts.

Description: Form 3520 is filed by U.S.

persons who create a foreign trust or

transfer property to a foreign trust.

IRS uses Form 3520 to establish the

identity of the U.S. person and to

determine if the transfer is subject to

the excise tax.

Respondents: Business or other forprofit.

Estimated Number of Respondents/

Recordkeepers: 500.

Estimated Burden Hours Per

Respondent/Recordkeepers:

Recordkeeping—5 hr., 44 min.

Learning about the law or the form—

35 min.

Preparing and sending the form to the

IRS—43 min.

Frequency of Response: On occasion.

Estimated Total Reporting/Reporting

Burden: 3,525 hours.

OMB Number: 1545–0196.

Form Number: IRS Form 5227.

Type of Review: Revision.

Title: Split-Interest Trust Information

Return.

Description: The data reported is used to

verify that the beneficiaries of a

charitable remainder trust include the

correct amounts in their tax returns,

and that the split-interest trust is not

subject to private foundation tax.

Respondents: Business or other forprofit.

Estimated Number of Respondents/

Recordkeepers: 53,303.

Estimated Burden Hours Per

Respondent/Recordkeepers:

Recordkeeping—46 hr., 38 min.

Learning about the law or the form—

3 hr., 30 min.

Preparing the form—10 hr., 0 min.

Copying, assembling, and sending the

form to the IRS—1 hr., 37 min.

Frequency of Response: Annually.

Estimated Total Reporting/Reporting

Burden: 3,290,927 hours.

Clearance Officer: Garrick Shear, (202)

622–3869, Internal Revenue Service,

Room 5571, 1111 Constitution

Avenue NW., Washington, DC 20224

OMB Reviewer: Milo Sunderhauf, (202)

395–7340, Office of Management and

Budget, Room 10226, New Executive

Office Building, Washington, DC

20503.

Lois K. Holland,

Departmental Reports Management Officer.

[FR Doc. 95–9777 Filed 4–19–95; 8:45 am]

BILLING CODE 4830–01–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. These summaries are

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 regulations 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. As of

January 1, 1995, General Counsel

precedent opinions are cited as

VAPOGCPREC XX–XX (Number and

Year), e.g., VAOPGCPREC 1–95.

O.G.C. Precedent 23–94

Question Presented

You have indicated you wish to

instruct VA Regional Offices to

adjudicate those pending 1151 claims

which can be allowed on the basis of the

U.S. Supreme Court’s precedential

decision in Brown v. Gardner, No. 93–

1128 (S. Ct., Dec. 12, 1994), and seek

advice as to the proper criteria for so

doing.

Held

Pending an opinion from the U.S.

Attorney General on the meaning of a

footnote in the U.S. Supreme Court’s

opinion in Brown v. Gardner, U.S. Sup.

Ct. No. 93–1128 (Dec. 12, 1994), VA

may, based on the Supreme Court’s

opinion, allow claims for benefits under

38 U.S.C. 1151 if: (1) an injury resulting

from VA treatment caused additional

disability or death and the injury is not

a risk of which the veteran was

informed before consent to undergo the

treatment, or (2) indicated fault on the

part of VA care-providers or the

occurrence of an accident resulted in

additional disability or death. No claim

for benefits under 38 U.S.C. 1151 should

be denied because no fault on the part

of VA care-providers or the occurrence

of an accident was shown.

Effective date: December 27, 1994.

VAOPGCPREC 1–95

Question Presented

a. Is the Department of Veterans

Affairs Adjudication Procedure Manual

M21–1, part IV, ¶ 20.46b., inconsistent

with applicable law and regulation

insofar as the manual directs that a

surviving spouse’s improved-pension

award shall reflect the dependency of a

child who is not in the surviving

spouse’s custody, but who receives a

protected apportionment of the

surviving spouse’s pension under

section 306 of Public Law No. 95–588?

b. If the manual provision is

consistent with the law and regulations,

must it be applied uniformly regardless

of whether it is to the surviving spouse’s

advantage?

Held

a. The provision in VA Adjudication

Procedure Manual M21–1, part IV,

¶ 20.46b., requiring payment of

increased improved-pension to a

surviving spouse when a veteran’s child

not in the spouse’s custody receives a

protected apportionment, is inconsistent

with the provision of 38 U.S.C. 1541 (b)

and (c) which authorize payment of the

increased rate only when the veteran’s

child is in the surviving spouse’s

custody.

b. In view of the holding in paragraph

a., above, the second question presented

is moot.

Effective date: January 4, 1995.
Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Notices 19809

VAOPGCPREC 2–95

Question Presented

Do the provisions of 38 U.S.C.

§ 5503(b)(1)(A) requiring withholding of

compensation and pension payments to

certain incompetent veterans apply in

the case of a veteran who is being

provided hospital care in a nongovernment facility outside the United

States, with the cost of such care being

paid by the Department of Veterans

Affairs (VA)?

Held

The provisions of 38 U.S.C.

5503(b)(1)(A), which require

withholding of compensation and

pension payments to certain

institutionalized, incompetent veterans

whose estates equal or exceed $1,500,

are applicable to veterans hospitalized

in any hospital, including a private

facility outside the United States, when

care is provided at the expense of the

United States.

Effective date: January 25, 1995.

VAOPGCPREC 3–95

Question Presented

What is the effect on entitlement to

Department of Veterans Affairs (VA)

dependency and indemnity

compensation (DIC) during a period of

remarriage, where a remarried spouse

obtains an annulment which, under

state law, renders the remarriage void ab

initio?

Held

For purposes of entitlement to

dependency and indemnity

compensation, a voidable marriage may

be considered to have been valid until

the date on which it was declared void

by judicial action, even though under

state law the annulment renders the

marriage void ab initio. Thus, although

entitlement to dependency and

indemnity compensation may be

restored upon annulment of the

remarriage of the surviving spouse of a

veteran, the annulment does not give

rise to entitlement for the period of the

remarriage.

Effective date: February 1, 1995.

VAOPGCPREC 4–95

Question Presented

Has a veteran, who has been notified

that he or she has met the basic

eligibility requirements for a specially

adapted housing grant because he or she

has a permanent and total serviceconnected disability due to one of the

conditions enumerated in 38 U.S.C.

2101 and that it is medically feasible for

the veteran to reside in the proposed

housing unit, been ‘‘granted assistance’’

for purposes of Veterans’ Mortgage Life

Insurance under 38 U.S.C. 2106(a)?

Held

A determination of whether a veteran,

who has been notified that he or she has

met the basic eligibility requirements for

a specially adapted housing grant

because he or she has a permanent and

total service-connected disability based

upon one of the conditions enumerated

in 38 U.S.C. 2101 and that it is

medically feasible for the veteran to

reside in the proposed housing unit, has

been ‘‘granted assistance’’ for purposes

of Veterans’ Mortgage Life Insurance

(VMLI) under 38 U.S.C. 2106(a) depends

upon whether a specially adapted

housing grant for the veteran was

approved by the Department of Veterans

Affairs, which is a factual matter

requiring adjudication by the Veterans

Benefits Administration based upon

applicable statutory provisions and

regulations and the evidence of record.

Effective date: February 6, 1995.

VAOPGCPREC 5–95

Question Presented

Do the provisions of 38 U.S.C. 110

and 38 C.F.R. 3.951, as interpreted by

the Court of Veterans Appeals (CVA) in

Salgado v. Brown, 4 Vet. App. 316

(1993), protect a disability rating

established over twenty years ago,

where compensation was discontinued

upon the veteran’s reentry into active

service shortly after the rating was

established and was not reinstated upon

the veteran’s discharge from service?

Held

Under 38 U.S.C. 110, a disability

which has been continuously rated at or

above a particular evaluation for twenty

or more years for compensation

purposes cannot thereafter be rated at

less than that evaluation, in the absence

of fraud. The protection provided by

this statute, however, is dependent

upon the disability being ‘‘continuously

rated’’ at or above the level in question.

Where compensation is discontinued

following reentry into active service in

accordance with the statutory

prohibition on payment of

compensation for a period in which an

individual receives active-service pay,

the continuity of the rating is

interrupted for purposes of the ratingprotection provisions of 38 U.S.C. 110

and the disability cannot be considered

to have been continuously rated during

the period in which compensation is

discontinued.

Effective date: February 6, 1995.

VAOPGCPREC 6–95

Question Presented

Whether service consisting solely of

attendance at the United States Military

Academy Preparatory School or United

States Naval Academy Preparatory

School may be considered ‘‘active duty’’

for purposes of title 38, United States

Code.

Held

The analysis of O.G.C. Prec. 18–94

regarding characterization of service

while attending the United States Air

force Academy Preparatory School

applies equally to service consisting of

attendance at the United States Military

Academy Preparatory School or the

United States Naval Academy

Preparatory School. Accordingly,

persons transferred to these schools

from active duty remain on active duty

status while in attendance at the

schools. For members entering the

USMAPS and the USNAPS from reserve

components and the Army National

Guard, attendance at the schools may

generally be characterized as active duty

for training. However, in adjudication of

individual claims of persons who

enrolled in the USNAPS from the Naval

Reserve or Marine Corps Reserve, it may

be necessary to confirm from service

records that such persons attended the

USNAPS in the status of reserves called

to active duty for training purposes. In

addition, it may be necessary in

individual cases of persons entering the

USMAPS and USNAPS from civilian

life to examine the pertinent service

records to confirm that such persons

entered the service in reserve status in

order to attend the preparatory school.

Effective date: February 10, 1995.

VAOPGCPREC 7–95

Questions Presented

1. In light of 38 U.S.C. 5106, may the

National Archives and Records

Administration (NARA) charge a fee for

providing the Department of Veterans

Affairs (VA) with copies of documents

for its records?

2. Does VA’s statutory duty to assist

claimants under 38 U.S.C. 5107(a)

require that VA pay fees charged by

Federal, state, or local agencies or

private sources to obtain copies of

records maintained by those sources?

Held

1. The National Archives and Records

Administration may charge a fee for

providing the Department of Veterans

Affairs with copies of records requested

in connection with a benefit claim,

notwithstanding 38 U.S.C. 5106, which

requires that the head of any Federal
19810 Federal Register / Vol. 60, No. 76 / Thursday, April 20, 1995 / Notices

agency provide information to VA upon

request for the purpose of determining

benefit eligibility.

2. Under 38 U.S.C. 5107(a), which

establishes the Secretary of Veterans

Affairs’ duty to assist claimants in

developing the facts pertinent to their

claims, the Secretary may require

claimants to assume responsibility for

payment of any fees associated with

obtaining copies of records maintained

by Federal, state, or local agencies or

private sources.

Effective date: March 6, 1995.

VAOPGCPREC 8–95

Questions Presented

1. Must a veteran affirmatively seek a

change of program of education?

2. If the answer to that question is yes,

does affirmatively seeking a change of

program of education require that the

veteran submit an application for the

change in the form prescribed by the

Secretary?

3. If the answer to the first question

is yes, must VA withhold payments

pending receipt of a request for a change

of program?

4. If the answer to the first question

is yes, does the Secretary have statutory

authority to eliminate this requirement

by regulation?

Held

1. An individual must affirmatively

seek a determination of his or her

eligibility to make any change of his or

her approved program of education.

2. The request for a determination of

eligibility for a change of program must

be made by the individual and, under

the applicable regulations, may be in

any form prescribed by VA. The form of

the communication to VA may include

the individual’s telephonic confirmation

of third-party information and even a

third-party document bearing the

individual’s signature from which a

reasonable inference of his or her intent

to change programs may be discerned.

3. VA may not pay benefits to an

individual for pursuit of a program

other than the one currently approved

until a request from the individual for

a determination of his or her entitlement

to pursue a particular new program has

been received and approved by VA.

4. The Department may not legally

implement, by regulation, procedures to

administer determinations of eligibility

to pursue a change of program that do

not require the individual seeking

approval of such a change to

communicate to VA his or her intent to

do so.

Effective date: March 24, 1995.

By Direction of the Secretary.

Mary Lou Keener,

General Counsel.

[FR Doc. 95–9734 Filed 4–19–95; 8:45 am]

BILLING CODE 8320–01–M