[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2113]


[[Page Unknown]]

[Federal Register: February 1, 1994]


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DEPARTMENT OF VETERANS AFFAIRS
 

Summary of Precedent Opinions of the General Counsel

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

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SUMMARY: The Department of Veterans Affairs (VA) is publishing a 
summary of legal interpretations issued by the Department's General 
Counsel involving veterans' benefits under laws administered by VA. 
These interpretations are considered precedential by VA and will be 
followed by VA officials and employees in future claim matters. It is 
being 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) 523-3830.

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 
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.

O.G.C. Precedent 5-93

Question Presented

    In determining the surviving spouse's income for improved-pension 
purposes, may amounts expended by the survivor in prepayment of 
obligations jointly incurred by the survivor and the veteran be 
excluded under the ``just-debts'' exclusion in 38 U.S.C. 1503(a)(3)?

Held

    In determining a surviving spouse's income for improved-pension 
purposes, amounts expended by the survivor in prepayment of secured 
obligations jointly incurred by the survivor and the veteran for the 
purchase of real or personal property may not be excluded under 38 
U.S.C. 1503(a)(3)(A), which provides that amounts paid by a surviving 
spouse or child of a deceased veteran for the veteran's ``just-debts'' 
may be excluded from income.
    Effective date: August 5, 1993.

O.G.C. Precedent 6-93

Question Presented

    (a) Under what circumstances, if any, may information contained in 
an eligibility verification report filed after a beneficiary's death be 
considered in determining eligibility for accrued benefits under 38 
U.S.C. 5121(a)?
    (b) May an award of accrued benefits under 38 U.S.C. 5121(a) be 
based on logical inferences from information of record at the date of 
the beneficiary's death?

Held

    (a) Information contained in an eligibility verification report 
submitted after the beneficiary's death may not be considered 
``evidence in the file at date of death'' for purposes of an award of 
accrued pension benefits under 38 U.S.C. 5121(a).
    (b) An award of accrued benefits under 38 U.S.C. 5121(a) may be 
based on logical inferences from information in the file at the date of 
the beneficiary's death.
    Effective date: August 9, 1993.

O.G.C. Precedent 7-93

Question Presented

    Does ``service in Vietnam,'' as referred to in 38 CFR 3.313, 
include service of a Vietnam era veteran who flew military missions in 
Vietnamese airspace, but who never actually landed in Vietnam?

Held

    For purposes of 38 CFR 3.313, which authorizes service connection 
of non-Hodgkin's lymphoma developing after military service in a 
veteran with service in Vietnam during the Vietnam era, the term 
``service in Vietnam'' does not include service of a Vietnam era 
veteran whose only contact with Vietnam was flying high-altitude 
missions in Vietnamese airspace.
    Effective date: August 12, 1993.

O.G.C. Precedent 8-93

Question Presented

    Do the provisions of 38 U.S.C. 1159 and 38 CFR 3.957 protect an 
award of dependency and indemnity compensation (DIC) under which 
benefits have been paid for over ten years but which was erroneously 
made in light of a rating-board decision that the veteran's death was 
not service connected?

Held

    The provisions of 38 U.S.C. 1159 and 38 CFR 3.957 do not protect an 
award of dependency and indemnity compensation under which benefits 
have been paid for over ten years but which was erroneously made in 
light of a rating-board decision that the veteran's death was not 
service connected.
    Effective date: August 25, 1993.

O.G.C. Precedent 9-93

Question Presented

    May the term ``definite,'' as used in 38 CFR 4.132, be construed in 
a quantitative manner?

Held

    The word ``definite,'' as used in 38 CFR 4.132 to describe a 30-
percent degree of disability for purposes of rating claims based on 
certain mental disorders, should be construed to mean distinct, 
unambiguous, and moderately large in degree, more than moderate but 
less than rather large.
    Effective date: November 9, 1993.

O.G.C. Precedent 10-93

Question Presented

    What legal effect has the provision in 38 CFR 3.326(b) that 
evidence will not be required solely to establish permanent and total 
disability for improved-pension purposes for veterans 65 years of age 
or older?

Held

    The provision of 38 CFR 3.326(b), that ``[e]vidence solely to 
establish permanent and total disability will not be required in claims 
for pension under 38 U.S.C. 1521 if the veteran has attained the age of 
65 years,'' is inconsistent with the will of Congress as expressed in 
section 8002 of the Omnibus Budget Reconciliation Act of 1990, Public 
Law 101-508. That statute eliminated for improved-pension purposes in 
claims filed after October 31, 1990, the presumption of permanent and 
total disability for persons 65 years of age or older. The referenced 
provision of section 3.326(b) is therefore null and of no legal effect.
    Effective date: November 24, 1993.

O.G.C. Precedent 11-93

Question Presented

    (a) When a claimant has been discharged under honorable conditions 
as a conscientious objector, does 38 CFR 3.12(c)(1) bar eligibility for 
benefits where the evidence does not establish that the claimant 
refused to perform military duty, wear the uniform, or comply with 
lawful military orders?
    (b) May a period of service be considered ``active, continuous 
service'' for purposes of 38 CFR 3.307(a)(1) where the period of 
service was interrupted by a thirteen-day period during which the 
servicemember was classified as being absent without official leave 
(AWOL)?

Held

    (a) Under the provision of 38 U.S.C. 5303(a) and 38 CFR 3.12(c)(1), 
a claimant who is discharged under honorable conditions as a 
conscientious objector is not thereby barred from eligibility for 
veterans' benefits unless, in addition to being a conscientious 
objector, the claimant also refused to perform military duty or refused 
to wear the uniform or otherwise to comply with lawful orders of 
competent military authorities.
    (b) In order to be eligible for service connection on a presumptive 
basis for certain chronic and tropical diseases, regulations at 38 CFR 
3.307(a)(1) require that a veteran have had at least ninety days 
continuous, active service. Not all unauthorized absences result in a 
break in service for purposes of this requirement. An absence of 
thirteen days, after which the absentee voluntarily returned to the 
absentee's unit, although not creditable for pay or time-in-service 
purposes, did not constitute a break in service for purposes of the 
``active, continuous service'' requirement imposed by regulations 
governing presumptive service connection.
    Effective date: December 20, 1993.

O.G.C. Precedent 12-93

Question Presented

    Pursuant to the opinion of the Court of Veterans Appeals (CVA) in 
In the Matter of the Fee Agreement of William G. Smith in Case Number 
91-488 et al., 4 Vet. App. 487 (1990) appeal docketed, No. 94-7017 
(Fed. Cir. Nov. 9, 1993) [hereinafter Matter of Smith], is the 
Department of Veterans Affairs (VA) required to pay 20 percent of a 
claimant's past-due benefit award directly to an attorney in accordance 
with an attorney fee agreement when the claimant would not be entitled 
to payment of any portion of the past-due benefit award because his 
outstanding indebtedness to the United States exceeded the amount of 
the past-due benefits awards?

Held

    The provisions of 38 U.S.C. 5314(a) require VA to apply the entire 
amount of the past-due benefits award to offset the veteran's 
outstanding debt to the United States. Therefore, no fund of past-due 
benefits payable to the veteran was created, and the veteran's attorney 
could not, by assignment under 38 U.S.C. 5604(d), obtain a right to 
direct VA payment of attorney fees from the past-due benefits award.
    Effective date: December 21, 1993.

    By direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 94-2113 Filed 1-31-94; 8:45 am]
BILLING CODE 8320-01-M