UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 08-3221

D A V I D L

. H O R N I C K , A P P E L L A N T ,

v.
E R I C K. S H I N S E K I , S E C R E T A R Y O F V E T E R A N S A F F A I R S , A P P E L L E E

. On Appea l from the B oard of Veter ans' Appea ls

(Arg ued May

26, 2010 Dec ided Aug ust 20, 2010)

Michae l P. Horan , of Washington, D.C., for the appe llant.

Y vette R. W hite , with whom W

ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; and Edward V. Cassidy, Jr. , Deputy Assistant Gene ral Counsel, wer e on the brief, all of Washington, D.C., for the appe llee.

Be fore GREENE, HAG EL , and MOORMAN, Judges

. GREENE, Judge : Veter an David L

. Hornick appea ls, throug h counsel, a September 15, 2008, decision of the Boar d o f Veterans' Appea ls (B oard) that deter mined that it was proper for a VA reg ional office (RO) to sever his May 1996 awa rd of VA compensa

tion benef its under 38 U.S.C. § 1151. M r

. H o r n i c k s e e k s r e v e r s a l , a r g u i n g , i n t e r a l i a , t h a t V A e r r e d i n s e v e r i n g h i s a w a r d o f s e c t i o n 1 1 5 1 c o m p e n s a t i o n b e n e f i t s b e c a u s e , u n d e r 3 8 U

. S

. C

. § 1 1 5 9 , t h a t a w a r d w a s p r o t e c t e d b e c a u s e i t h a d b e e n i n f o r c e f o r m o r e t h a n t e n y e a r s

. T h e S e c r e t a r y r e s p o n d s t h a t t h e B o a r d w a s b o u n d b y Gene ral Counsel Prece dent Opinion 13-96 [hereinaf ter G.C. Prec. 13-96], w h i c h d e t e r m i n e d t h a t t h e s e c t i o n 1 1 5 9 p r o t e c t i o n o f s e r v i c e c o n n e c t i o n d o e s n o t e x t e n d t o p r o t e c t d is a b il it ie s c o m p e n s a t e d u n d e r s e c t i o n 1 1 5 1

. F o r t h e r e a s o n s s e t f o r t h b e l o w , w e w i l l r e v e r s e t h e S e p t e m b e r 2 0 0 8 B o a r d d e c i s i o n a n d r e m a n d
t h e m a t t e r f

o r p r o c e e d i n g s c o n s i s t e n t w i t h t h i s o p i n i o n

.I. BACKG ROUND

I n May 1996, the RO awa

rded Mr. Hornick section 1151 compensa tion benef its for residuals

o f a low-bac k injury , eff

ective September 16, 1994. R. at 739-40. The decision ref lects that on Marc h 15, 1991, Mr. Hornick was injured while "sitting at the VA Medica l Center [(VAMC)]" when the bench that he was sitti ng on "br oke causing him to be caug ht in the wroug ht iron fra me with split wood around his body ." R. at 739. At that time, the RO deter mined that Mr. Hornick' s residuals of a low-ba ck injury

"r esulted fr om V A hospitaliz ation, medical, or surg ical tre atment." Id. I t is not disputed that the injury occur red while the veter an was wait i n g o u t s i d e of the dental clinic at the I ndianapolis, I ndiana, VA MC. I n Fe bruar

y 1997, the RO found M r. Ho rni ck to be totally disabled as a result of his Marc h 1991 low-bac k injury and incre ased his disability rating from 40% to 100%, eff ective September 16, 1994. R. at 639. The RO also awa rded him spe cial monthly compensa tion (SMC ) benef its "ba sed on para ly sis of both lower extremiti es [and ] l o s s o f b owel and bladder control," eff ective Septe mber 16, 1994. R. at 642. I n November 2005, the RO proposed to sever Mr. Hornick' s section 1151 benef its. R. at 334- 39. The RO noted that Mr. Hornick' s Marc h 1991 injury was incurre d while he was "outside the VA Dental Clini c" and thus deter mined that "[a] clea

r and unmistakable err or [(CUE)] was m ad e" i n

awa rding him section 1151 compensa tion benef

its "ba sed on an injury which did not result from examination or hospital car e or trea tment." R. at 337 (citing Sw ei t z er v. Brown , 5 Vet.App. 503 (1993))

. I n J anuar

y 2006, VA notified Mr. Hornick that his awa rd of VA compensa tion under section 1151 was sever ed beca use there was CUE in the decision g ranting entitlement to that benef it. R. a t 317- 20. Mr. Hornick appea led that decision to the Boa rd and, in September 2008, the Boa rd deter mined that the RO proper ly severed Mr. Hornick' s section 1151 benef its. As part of its decision, the Boa

rd considere d the applicability of 38 U.S.C. § 1159, which provides that "[s]ervice

co n n ec tion for any disability

. . . which has been in forc e for ten or more y ear s shall not b e

sever ed

. . . except upon a showing that the orig inal g rant of service connec tion was based on fra ud." 38 U.S.C. § 1159. The Boa rd, rely ing on G.C. Prec. 13-96, found that the section 1159 protec tion did not extend to awa

rds of compensa tion benef its under sec tion 1151 and, there fore , the R O was not proce durally

prohibited from seve ring Mr. Hornic k' s section 1151 compensa tion benefits.

2II. AP P LICABLE LAW AND AN ALYSIS A. Statutory

Scheme "A s in all statutory construction case s, we beg in with the lang uag e of the statute." Barnhart

v. Sigmon Coal Co., Inc ., 534 U.S. 438, 4 5 0 (2002). The meaning of a statutory word or phrase
cannot b e d et er m i n ed i n isolation, but must be draw n from the context in which it is used. See Holloway v. United States , 526 U.S. 1, 6 (1999) (" I n interpre ting the statute at issue, ' [w] e consider not only the bare meaning ' of the c ritical word or phrase ' but also its placement and pur pose in the statutory scheme .' ") (quoting Bailey v. United States , 516 U.S. 137, 145 (1995)) ; King v. St. Vincent's Hosp ., 502 U.S. 215, 221 (1991) (finding no limit on leng th of milit ary service afte r which a member of the Armed Service s might reta in a rig ht to re- employ ment, wher e it could be inferr ed that no such limit was implied from other p ro visions in the same statute that contained such limit s) (citations omitted). Thus, the plain meaning of any statutory provision must be deter m i n ed i n l i g ht of the statutory scheme as a whole, the specific context in which the word or provision at issue is used, and the broade r context of the statute as a whole. Kokoszka v. Belford , 417 U.S. 642, 650 (1974) (" When

' interpre ting a statute, the court will not look mere ly to a par ticular c lause in which gene ral words
may be used, but will take in connec tion with it the whole statutes (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and g ive to it such a construction as will car

ry into execution the will of the L eg islature.' " (quoting Brown v. Duche sne , 60 U.S. 183, 194 (1857)))

. "Cha pter 11 of title 38, U.S. C o d e, go v er n s claims for compensa tion by veter ans for their service -conne cted disabiliti es." De B eaord v. Principi , 18 Vet.App. 357, 363 (2004). "T he basic
purpose of the chapte r 11 compensa tion provisions is to rec ompense veter ans for conditions that are

a result of or arise during their service ." Id

. at 364; see 38 U.S.C. § 1110 (" For disability resulting from persona l injury suffe red or disease contra cted in line of duty

. . . the United States will pa y to
any veter an thus disabled

. . . compensa tion as provided in this subchapter." ); 38 U.S.C. § 1131 (providing same for p e a c e ti me service ); VA For m 21-526 (" Veter an' s Application for Compensation and/or Pension" ).

3Both statutory provisions at issue in this appea l–38 U.S.C. §§ 1151 and 1159–are contained

within subchapter VI of chapte r 11, entitled "G ener al Compensation Provisions." At the time Mr. Hornick w as aw arde d compensa tion under sec tion 1151, that statute provided: Where any veter an shall have suffe red an injury , or an ag g rava tion of an injury , as the result of hospitaliz ation, medical or surg ical trea tment, or the pursuit of a course of vocational reha

bilitation under chapte r 31 of this title, awa rded under any of the laws administered by the Secr etar y , or as a result of ha ving submitt ed to a n examination under any such law, and not the result of such veter an' s own willful misconduct, and such injury or ag g rava tion results in additional disability to or the death of such veter an, disability or death compensa tion under this chapte r and depen dency and indemnity compensa tion under chapte r 13 of this title shall be awarded in the same manner as if such disability, aggravation, or death were service -conne cted

. 38 U.S.C. § 1151 (emphasis added) . Section 1159 provides, in per tinent part, that: Service connec tion for any disability or death g rante d under this title which has been in forc e for ten or more y ear s shall not be sever ed on or afte r J anuar y 1, 1962, except upon a showing that the orig inal g rant of service connec tion was based on f raud or it is clea rly shown from milit ary rec ords that the person conce rned did not have the requisite ser

vice or char acte r of discha

rg e. 38 U.S.C. § 1159. B. Standa rd of Revie w Prece dent opinions "c onstitut e a body of experience and informed judgme nt" on the part of VA. Osman v. Peak

e, 22 Vet.App. 252, 256 (2008); see Skidmore v. Swift
, 3 2 3 U. S

. 1 3 4 , 140 (1944). There fore , the Board is "bound in its decisions by the .

. . prec edent opinions of t he chief leg al office r of t h e Depa rtment." 38 U.S.C. § 7104(c)

. Although the Boa rd is bound by the
prec edent opinions issued by the VA Gene ral Counsel, this Court is not. Hatch v. Principi, 18 Vet.App. 527, 531 (2004); Sabonis v

. Brown, 6 Vet.App. 426, 429 (1994). There fore , the issue of whether section 1159 applies to protec t awa rds of compensa tion made under section 1151 is one of first impression for the Court. See DeBe aord, supra (Court revie ws VA' s statutory interpre tation de novo). Our revie w is g uided by the United States Supreme Court's mandate that, when interpre ting
veter ans benef

its statutes, interpret i v e doubt is to be resolved in favor of the veter an. Brown v. Gardner , 513 U.S. 115, 117-18 (1994). Finally , the deg ree to which an a g ency ' s interpre tations of amb i gu ous statutes are g iven defe renc e "w ill depend upon the thoroug hness evident in its

4consideration, the validity of its reasoning,

. . . and all those fac tors which g ive it power to

persua de." Skidmore, 323 U.S. at 140. Her e, the ag ency interpre tation of section 1159 was the basis for the Boa rd' s decision in this matter; thus, the Court "must deter mine whether that interpre tation," as set forth in G.C. Prec. 13-96, "is a corr ect statement of rele vant law." Osman v. Peak e , 22 Vet.App. 2 5 2 , 2 5 6 (2 0 0 8). "A

re je c ti o n o f th e VA Gene ral Counsel opinion that the Boa rd decision found deter

minative nece ssarily require s the reje ction of the B oard de cision itself." Id.

C. VA Gene ral Counsel Prec edent Opinion 13-96 I n November 1996, the VA Gene ral Counsel issued a prec edent opinion deciding the prec ise question now befor e the Court: "D oes t he protection of service connection provided by 38 U.S.C. § 1159 apply to disabiliti es co m p en s at ed under 38 U.S.C. § 1151." G.C. Prec. 13-96. The VA Gene ral Counsel deter

mined that the section 1159 protec tion of service connec tion is not applicable
to disabiliti es compensa ted under section 1151. The Gene ral Counsel rea soned that, beca use section 1159 neither authorizes awa rds of compensa tion nor presc ribes the manner in which pay ments are made, but r ather perta ins to the fac tual deter mination of service connec tion, se ction 1159 does not protec t compensation paid unde r sec tion 1151. D. 38 U.S.C. § 1151 1. Caselaw The Court ha s had sever al opportunities to c onsider the question of what ancillar y benef its

are available to veter ans based on an awa rd of compensa tion under section 1151. I n Mintz v. Brown , 6 Vet.App. 277 (1994), the Court found that a widow of a veter an awa rded sec t i on 1151
compensa tion was not entitled to Chapter 23 benef its for burial costs. The Court stated that "a deter mination of ' as i f' service connec tion under [ section] 1151 may cre ate entitlement to benef its under c hapter s 11 and 13, but not to benefits under chapte r 23." Id. at 283. I n Kilpat rick v. Principi , the Court found that a veter an awa rded section 1151 compensa tion

was entitled to specia lly adapte d housing and a s p ec i al home adaption benef it under 38 U.S.C. § 2101(a)

. 16 Vet.App. 1, 6 (2002), aff' d , 327 F.3d 1375 (F ed. Cir. 2003). The Court distinguished Mintz on the g rounds that s ec t i o n 2 1 01(a) authorized the Secre tary "to assist any veter an who is entitled to c ompensation under chapte r 11" for a perma nent and total service -conne cted disability ,

5wher eas section 2307 (the burial benef its statute at issue in Mintz ) "a war ds benef

its for ' a vet era

n who dies as the result of service -conne cted disability .' " Id. at 5 (quoting 38 U.S.C. § 2 3 0 7 ). The Court found deter

minative the statutory

elig ibilit y

criter ia for the ancillar

y benef it the veter an was seeking , noting that "by its very terms, section 1151 rela tes only to the awa rd of compens ation under chapte rs 11 and 13." Id. On appea l, the U.S. Court of Appea ls for the Fe dera l Circui t (F eder al Circuit) aff

irmed this Court's de cision, but rejec ted its reasoning that beca use Mr. Kilpatrick "w as entitled to compensat i o n under chapte r 11, and the chapte r 11 compensa tion to which he was entitled, pursuant to section 1151, was the same as that awa rded to veter ans with perma nent and total service -conne cted disabiliti es," he was there fore entitled to chapte r 21 housing benef its. Kilpat rick, 327 F.3d at 1380. The Fe dera l Circuit examined the leg islative history of section 1151 and historical backg round of section 2101(a) to conclude that Congr ess' intent had alway s been to make available specia l a daptive housing benef its to veter ans re ceiving section 1151 compensa tion be nefits. Id. at 1383 (" [W ]e interpre t the 1957 Act to provide that veter ans who were disa bled by VA medical or surg ical proce dures wer e entitled to spe cially adapte d housing benef its be cause they wer e entitled
to the compensa t i o n t h at was provided under the Act for ' perma nent and total service -conne cted disability due to the loss, or loss of use . . . of both lowe r extremities.'" ). I n Alleman v. Principi , this Court considere d whether a veter an qualified for chapte r 19 life insurance benef

its based on his rec eipt of section 1151 compensa tion. 16 Vet.App. 253 (2002), aff' d , 349 F.3d 1368 (F ed. Cir. 2 0 0 3 ). T he Court deter mined that a veter an rec eiving section 1151
compensa tion was not elig ible for Service Disabled Veter ans' I nsuranc e (SDVI ) beca use 38 U.S.C. § 1922(a) require s that a veteran ap p l y for the benefit "w ithin two y ear s of being awarde d service

connec tion for a disability ." Id. at 257. On appea l to the Fe dera l Circuit, Mr. Alleman arg ued that the definition of compensa tion set forth in 38 U.S.C. § 101(13) require s a fi n d i n g o f s er v ice

connec tion befor e any disability compensa tion may be made. The Fe der al Circuit reje cted this
argu m en t , stating that "[s]ection 1151 does not rede fine 'ser vice- connec ted,' " but rathe r "provides

an ex ception that g rants compensation for some non-ser vice- connec ted di sabilities, trea ting those disabiliti es for

some purposes ' as if' they wer e ser vice- connec ted.' " Alleman , 349 F.3d a t 1370-71.

62. Legislati ve H istory Fr om the case s d ea l i ng with section 1151, it is appar ent that the leg islative history is as important as the statutory text when deter mining what ancillar

y benef its a veter an is entitled to once

an awa rd of section 1151 compensa tion has been made. The l egi s l at i ve history of section 1151

reve als that the statute was first enac ted as section 213 of the World War Veter ans' Act of 1924, Pub. L

. No. 68-242, § 213, 43 Stat. 607, 623. I t provided that the compensa tion benef its of title I I of the 1924 Act would be aw ar d ed t o those World War I veter ans who wer e injured or whose exis ting injuries wer e ag g rava

ted "a s the result of training , hospitaliz ation, or medical or surg ical trea tment." Id. The benef

its of title I I wer e to be provided to section 213 veter ans "in the same manner as though such disability , ag g rava tion, or death was the result of milit ary service during the World War." Id. Testimony prec eding the passag e of the 1924 Act establish ed t h e d rafters' intent to compensa te disabled veter ans who suffe red a harm that was not se rvice connec ted to e nsure that veter ans wer e

re ce i v i n g all benef

its to which they wer e entitled. See Hea ring s befor e the House Commi ttee o n World War Veter ans' L eg islation, 68th Cong., 1st Sess. 113 (1924) (" I f, in the course of vocational training , the trainee is injured without fault of his own as a result of one of the occupational hazards of the training , there is at prese nt no authority to compensa te him for that disability which, of course , has no direc t service connec tion."). Section 213 of the 1924 Act was repe aled in 1933 and repla ced in 1934 by a simil ar statute that applied to veter ans g ener ally , not solely veter ans of World War I

. See Pub. L

. No. 73-141, § 31, 48 Stat. 509, 526 (1934). The new statute pr ovided that specifie d compensa tion be nefits would be

awa rded to persons who suffe red an injury or ag g rava tion of an exis ting injury as the result of training , hospitaliz ation, or medical or surg ical trea tment provided pursuant to the veter ans benef it laws "in the same manner as if such disability , ag g rava tion, or death wer e service connec ted within the meaning of such law s." Id

.

E. Relationship betwee n 38 U.S.C. §§ 1151 and 1159 I nitially , we obse rve tha t an award of compensa tion under section 1151 is not an award of service connec tion. As the Fe dera l Circuit stated in Alleman, "[s]ec t i o n 1151 does not acc ord service -conne cted status to a veter an' s disability or death, but rathe r provides that in cer tain instances

a veter an' s disability or death will be trea ted ' as if ' it wer e service -conne cted for cer tain purposes."

7349 F.3d at 1370 (empha sis added)

. Mr. Hornick simil arly rec og nizes that the awa rd of section 1151 benef its does not bestow upon him service -conne cted status; he asser ts, howeve r, t h at beca

use section 1151 require s VA to trea t d i s ab iliti es compensa ted under that section "a s if" they wer e service connec ted, section 1159 preve nts VA from sever ing that awa rd of benef

its once it has been in place for a period of 10 y ear s. Mr. Hornick arg ues that "Cong ress' use in § 1151 of the statutorily define d term ' service -conne cted'

. . . . manifested a clea r intent to provide § 1151 disabled veter ans with the very same lega l protec tion that are available to service -conne cted veter an s

. " Appellant's Br ief a t 24. As stated above, section 1159 protec ts deter minations of service connec tion that have been in eff ect for 10 y ear s or more. I n ena ct i n g t he provisions curr ently codified in section 1159, Congr ess explained that the leg islation "me rely fre ezes the deter mination of service connec tion, that is to say the finding by the Veter ans' Administration that the disability was incurre d in or ag g rava ted by milit ary service ." S. Rep. No. 13 9 4 , 8 6 C o ng ., 2d Sess. 1 (1960), reprinted in 1960 t h U.S.C.C.A.N. 2238. Congr ess noted that the statute "doe s not fre eze the perc entage ra t i ng which
repr esents the deg ree of the disability and g overns the amount of compensa tion pay able there for." Id. At the time of the e nactment of section 1159, sec tion 1151 was in eff ect. On i t s fa ce , the use of the term "se rvice connec tion" in section 1159 would seem, upo n preliminary revie w, t o exclude section 1151 compensa tion rec ipients from it s prot ec t i on, beca use that statute provides only compensa tio n , n o t service connec tion. But, throug h its lang uag e, Congr ess has cl early stated its intent that benef iciarie s of section 1151 compensa tion are to have their disabiliti es trea ted "a s if" they wer e service connec ted. Be cause both section 11 1 1 an d 1159 are contained in title 38 under the subcha

pter dealing with g ener al compensation provisions, it would violate proper statutory construction to conclude that these sections are not part of a harmon i ous whole and that thus the protec tion aff orded by section 1159 would not apply to those individuals

rec eiving section 1151 compensa tion benef its. See Mee ks v. W

est , 12 Vet.App. 352, 354 (1999) (" ' [E] ach part or section [of a statute] should be construed in connec tion wi t h ev er y o t h er part or secti o n so as to produce a harmonious whole.' " (quoting 2A N. S I N G E R , S U T H E R L A N D O N S T A T U T O R Y C O N S T R U C T I O N § 46.05 (5th ed. 1992)))

. To conclude otherwise would be inconsistent with the statutory

scheme of cha

pter 11, the pur

pose of whic h is to provide disabled veter ans with

8compensa tion and, under cer tain circ umstances, to protec t th e b as i s fo r that compensa tion. See De B ea o r d

, supra. Moreove r, as the Supreme Court held in Gardner , if a statute is ambig uous, "inter pretive doubt is to be re solved in the veter an' s favor ." Gardner , 513 U.S. at 118

. Fur ther, as orig inally introduced, House Bill 113, which led to the prese nt-day section 1159, provided that "a service connec tion whic h has been made for compensa tion, pe nsion, or insurance
purposes under law administered by the Veter ans' Administration, a nd which has been in forc e for
ten or more y ear s, shall not b e s ev er ed t here afte r unless on a showing that the rating orig inally
g ranting service connec tion was based on fra ud." Hea

ring s on the bill wer e h el d b efor e the Subcommitt ee on Compensation and Pension and comments made during those hear ings prompted the revision of House Bill 113 and enac tment of the statute as it rea ds today

. VA noted its objection
t o the orig inal text of the bill, stating that the use of the word "c ompensation" raises a quest i o n "w hether the bill would apply to ' depende ncy and indemnity compensa tion.'" L etter fr om Deputy Administrator Br adfor d Morse to Chairman Olin Tea g ue (Jul y 24, 1959), reprinted in H.R. Rep. No. 1529, 86th Cong., 2d Sess. (1960). VA also objected to the inclusion of pension i n t h e s t atut e beca use "[s]ervice connec tion i s not rele vant to the pay ment of non-ser

vice- connec ted disability pension to war veter ans or of non-serv i ce -c o n n ected death pension to widows and children of
veter ans of World War I and prior y ear s." Id. Finally , VA noted that the bill err oneously "a ssumes that there is a basic rela tionship betwee n servi ce connec tion and the benef it of insurance ." Id. Nothing in these statements indicates that the text of the statut e as orig inally introduced, which sug g ests that the purpose of the statute was t o p ro t ec t the pay ment of compensa tion that
veter ans had come to rely upon, was revised to exclude benef iciarie s of section 1151 compensa tion from the protec tion of section 1159. Thus, we hold that the section 1159 protec tion from sever ance of awa rds of "se rvice connec tion" in eff ect for 10 or more y ea rs also extends to awa rds of
compensa tion under sec tion 1151 that have bee n in effe ct for 10 or more y ear s. We conclude tha t this holding is in harmony with the statutory scheme and the g ener al purposes of chapte r 11 and of title 38. Acc ording ly , for the rea sons stated above, we reje ct G.C. Prec. 13-96, which deter mined 1

I n k e e p i n g w i t h t h e s t a t u t o r y s c h e m e , V A c o m p e n s a t i o n b e n e f i t s a w a r d e d u n d e r 3 8 U

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. § 1 1 5 9 i f i t i s s h o w n t h a t " t h e o r i g i n a l g r a n t w a s b a s e d o n f r a u d o r i t i s c l e a r l y s h o w n f r o m m i l i t a r y
r e c o r d s t h a t t h e p e r s o n c o n c e r n e d d i d n o t h a v e t h e r e q u i s i t e s e r v i c e o r c h a r a c t e r o f d i s c h a r g e

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. 9that the section 1159 protec tion does not apply to awa rds of compensa tion u n d er s ec t ion 1151. Consequently , we reve rse the Boa rd' s decision that relied on that opinion and rema nd the matter for action consistent wi t h t h i s o p i nion. See Hensley v. W est, 212 F.3d 1255, 1263 (F ed. Cir. 2000) 2 (holding that Court may reve rse an incorr ec t judgme nt of law that is based upon proper fac tual finding s, provided that i t d oes "' not simply [m ake] fac tual finding s on its own.' ") (quoting Icic le Seafoods, Inc. v . W

orthington, 475 U.S. 709, 714 (1986)).

III. CONCLUSION Upon consideration of th e f o r e g o in g a

n a ly s is , the rec ord on appea l, and the parties' pleading s, the September 15, 2008, Boa rd decision is REVERSED and the matter is REMANDED for t he Boa rd to reinstate Mr. Hornick' s section 1151 compensa tion benef its and any other awa

rds flowing there from.

W e n o t e , o f c o u r s e , t h a t t h e B o a r d w a s b o u n d b y t h e V A G e n e r a l C o u n s e l 's o p i n i o n i n r e a c h i n g i t s d e c i s i o n

. 2 S e e 3 8 U

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. § 7 1 0 4 ( c )

. T h e B o a r d 's d e c i s i o n , h o w e v e r , i s e r r o n e o u s b e c a u s e t h e G e n e r a l C o u n s e l 's o p i n i o n m i s s t a t e s t h e l a w
. 10