[Federal Register Volume 59, Number 101 (Thursday, May 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12808]


[[Page Unknown]]

[Federal Register: May 26, 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 claims 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) 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 
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 1-94

Question Presented

    Whether, in computing annual income for improved pension purposes, 
the $2,000 exclusion provided by 25 U.S.C. 1407 for certain Native 
American tribal per-capita payments applies to the sum of all payments 
received during an annual reporting period or applies to each 
individual payment received during the reporting period.

Held

    For purposes of computing annual income under the improved-pension 
statutes, 25 U.S.C. 1407 authorizes the exclusion from a claimant's 
income of no more than $2,000 of the aggregate amount received during 
the relevant twelve-month period as per capita distributions from a 
Native-American tribal trust fund.
    Effective date: January 19, 1994.

O.G.C. Precedent 2-94

Question Presented

    Does a temporary total relating based on convalescence, under 38 
CFR 4.30, satisfy the requirement in 38 U.S.C. 1114(s) of a disability 
rated as total for entitlement to special monthly compensation?

Held

    The plain and unambiguous language of 38 U.S.C. 1114(s) does not 
restrict the nature of total ratings that may serve as a basis of 
entitlement to the special rate of disability compensation which 
section 1114(s) authorizes. A temporary total rating based on 
convalescence, under 38 CFR 4.30, satisfies the requirement in section 
1114(s) of a disability rated as total.
    Effective date: February 2, 1994.

O.G.C. Precedent 3-94

Question Presented

    May the Department of Veterans Affairs (VA) consolidate monthly 
benefits of National Service Life Insurance (NSLI) beneficiaries into 
one annual payment in order to protect against misuse of benefit 
checks?

Held

    No statutory authority exists which would allow VA to accumulate 
monthly NSLI benefits, other than monthly payments of less than $5 on 
policies which matured prior to August 1, 1946, into a single annual 
payment.
    Effective date: February 8, 1994.

O.G.C. Precedent 4-94

Question Presented

    Under what circumstances may withheld pension benefits be paid to 
the children of a veteran's surviving spouse (now deceased) where the 
surviving spouse's benefits were withheld due to the surviving spouse's 
residence in the People's Republic of China?

Held

    a. Following the death of a veteran's surviving spouse, payment of 
pension benefits withheld from the surviving spouse under 31 U.S.C. 
3329 (which bars sending Government checks to certain foreign 
countries) and deposited in the special deposit account in the 
Department of the Treasury is governed by the provisions of 31 U.S.C. 
3330 (c) and (d). Under section 3330(d)(1)(A), payment of such benefits 
is precluded where a claim is not filed within one year following the 
surviving spouse's death. Further, under 31 U.S.C. 3330(d)(2), payment 
may only be made on the basis of a rating or decision existing at the 
time of the surviving spouse's death.
    b. After the death of the surviving spouse, amounts withheld due to 
the surviving spouse's foreign residence and deposited in the Treasury 
as miscellaneous receipts pursuant to 31 U.S.C. 3330(b), and amounts 
not paid as a result of 38 U.S.C. 5308 (which bars payment of non-
contractual veterans' benefits to aliens located in the territory of an 
enemy of the United States), may only be paid in accordance with the 
accrued-benefit provisions of 38 U.S.C. 5121. Those provisions require 
that an application have been filed within one year of the surviving 
spouse's death. They also limit benefits to those to which the 
surviving spouse was entitled at death based on existing ratings or 
decisions or on evidence in the file on the date of death and only 
authorize payment of benefits due and unpaid for a period not to exceed 
one year.
    Effective date: February 8, 1994.

O.G.C. Precedent 5-94

Questions Presented

    How, if at all, are the provisions of 38 U.S.C. 5101(a), 5110(a), 
and 5110(g) and 38 CFR 3.114(a) to be applied in establishing an 
effective date for service connection of non-Hodgkin's lymphoma (NHL) 
based on an original claim made pursuant to 38 CFR 3.313?

Held

    An effective date for service connection of non-Hodgkin's lymphoma 
under 38 CFR 3.313 may generally be based on the date of receipt by the 
Department of Veterans Affairs of an original claim for that benefit 
filed on or after August 5, 1964, regardless of whether the claim had 
previously been denied, if the claimant was otherwise eligible on the 
date of claim. As a practical matter, the provisions of 38 U.S.C. 
5110(g) and 38 CFR 3.114(a) permitting payment of retroactive benefits 
for periods prior to the date of receipt of a claim under certain 
circumstances could not be applicable in determining the effective date 
of an award of service connection under Sec. 3.313 because no one could 
have met all eligibility requirements for benefits under Sec. 3.313 on 
its effective date of August 5, 1964.
    Effective date: February 18, 1994.

O.G.C. Precedent 6-94

Questions Presented

    a. Prior to March 10, 1976, did Diagnostic Code 5296 contain a 
system for rating skull loss under which single skull holes were rated 
exclusively by comparison to coin size and multiple skull holes were 
rated exclusively based on reference to a specified area in square 
inches?
    b. If so, what was the rationale for such a system and was it 
legally supportable?

Held

    a. Former Diagnostic Code 5296, as in effect prior to March 10, 
1976, established a bifurcated system of assigning disability ratings 
for partial skull loss, under which ratings could be assigned either on 
the basis of the aggregate of two or more areas of skull loss or on the 
size of a single area of skull loss. Prior to the 1976 revision, this 
diagnostic code provided for assignment of a 50-percent rating where: 
(1) There were two or more areas of skull loss whose aggregate area 
exceeded 2 square inches, or (2) there was a single area of skull loss 
which was greater in size than a 50-cent piece. Similarly, the prior 
provisions of the diagnostic code provided a 30-percent rating where: 
(1) There were two or more areas of skull loss whose aggregate area 
exceeded 1 square inch, or (2) there was a single area of skull loss 
which was greater in size than a 25-cent piece.
    b. The establishment of such rating criteria necessarily implies a 
finding that a single area of skull loss greater than a specified size 
was considered to represent a greater impairment of earning capacity 
than two or more smaller areas having a greater aggregate area. We 
cannot conclude that establishment of such criteria was outside the 
scope of the Administrator of Veterans' Affairs' discretion under 
statutory provisions authorizing establishment of a rating schedule.
    Effective date: February 24, 1994.

O.G.C. Precedent 7-94

Question Presented

    Does the amount of a Federal Tort Claims Act settlement to be set 
off against benefits payable under 38 U.S.C. 1151 include the amount of 
attorney fees paid out of the settlement proceeds?

Held

    When an individual is awarded a judgment or enters into a 
compromise on a Federal Tort Claims Act claim subject to 38 U.S.C. 
1151, that individual's future veterans' disability compensation 
benefits based on the same disability must be offset by the entire 
amount of the judgment or settlement proceeds, including the amount of 
any attorney fees paid out of such proceeds.
    Effective date: March 1, 1994.

O.G.C. Precedent 8-94

Questions Presented

    a. If no claim has been filed under the Vocational Rehabilitation 
program authorized by chapter 31, title 38, United States Code, does 
Vocational Rehabilitation Service, Veterans Benefits Administration 
(VBA) have statutory authority to evaluate a veteran for purposes of 
determining the individual's eligibility for compensation benefits 
under chapter 11, title 38, United States Code?
    b. If such statutory authority exists, is an implementing 
regulation also required pursuant to section 501(a)(3), title 38, 
United States Code?
    c. If Vocational Rehabilitation Service within VBA does not have 
statutory authority to provide a rehabilitation assessment for purposes 
of the VA compensation benefits program, is there statutory and 
regulatory authority for requesting an equivalent VA examination (e.g., 
a fee-basis consultation by a psychologist who specializes in 
vocational assessments)?

Held

    a. Vocational Rehabilitation evaluations conducted under authority 
of chapter 31, title 38, United States Code, may be provided only to 
eligible persons applying for benefits under that chapter and only for 
the specific purposes of that chapter.
    b. The Secretary has authority under section 501(a)(3), title 38, 
United States Code, to conduct a ``vocational rehabilitation 
assessment'' for purposes of determining the existence of facts to 
support an IU rating. Further, 38 U.S.C. 512 authorizes the Secretary 
to delegate to any VA component the responsibility for making such 
assessments.
    c. Under 38 U.S.C. 513, the Secretary theoretically may, subject to 
procurement rules, contract with third parties for such assessments if 
he deems them to be necessary for proper administration of the 
compensation benefits program. However, as noted in the [Office of 
General Counsel unpublished decision, dated July 25, 1988], the 
Congress has previously considered and failed to enact legislation 
mandating use of such assessments. Therefore, Congress may perceive 
that administrative implementation of such a requirement by the 
Secretary is an attempt to circumvent the legislative will of Congress 
by providing for a procedure which the latter, to date, has rejected.
    d. If the Secretary elects to exercise all or any of the statutory 
authority cited in paragraphs (b) or (c) of this holding, the Secretary 
must, as a prerequisite, promulgate appropriate implementing 
regulations consistent therewith and with the dictates of due process. 
In particular, substantive regulations first would have to be 
promulgated detailing the scope, purpose, criteria for, and potential 
legal effect of such assessments and should include a delegation of the 
task of administering the requirement to a particular agency activity.
    e. As to the case which precipitated this inquiry, we believe that 
the assessment agreed to by the parties and incorporated in the COVA 
remand may be conducted on an ad hoc basis by any agency activity 
competent to do so as informally designated by the Secretary. Absent 
such a consensual arrangement, however, and without appropriate 
regulatory authority, imposing that assessment on a case-by-case basis 
would violate due process and would be ultra vires. Moreover, absent a 
policy determination on the use of an employability assessment in 
deciding IU claims, and absent appropriate regulations, administrative 
procedures, and delegation of authority implementing such a policy, we 
would recommend against inviting or encouraging even consensual use of 
the assessment on an ad hoc basis in future cases. Among other legal 
concerns, such action could provoke claims of unequal treatment under 
the law.
    Effective date: March 25, 1994.

O.G.C. Precedent 9-94

Question Presented

    Do decisions of the U.S. Court of Veterans Appeals (CVA or court) 
invalidating Department of Veterans Affairs (VA) regulations or 
statutory interpretations have retroactive effect?

Held

    Decisions of the CVA invalidating VA regulations or statutory 
interpretations do not have retroactive effect in relation to prior 
``final'' adjudications of claims, but should be given retroactive 
effect as they relate to claims still open on direct review.
    Effective date: March 25, 1994.

    By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 94-12808 Filed 5-25-94; 8:45 am]
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