[Federal Register Volume 60, Number 34 (Tuesday, February 21, 1995)]
[Notices]
[Pages 9719-9721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4141]
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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) 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 [[Page 9720]] 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 17-94
Question Presented
May a supervisor for a State Approving Agency (SAA) enroll in and
pursue training at a for-profit flight school in a course approved for
training under a VA administered education benefits program?
Held
1. An SAA officer or employee will be considered to have received
``services'' from a for-profit educational institution within the
meaning of section 3683 of title 38, United States Code, when the
individual receives instruction in a course approved for VA purposes at
that institution, even though the official or employee is enrolled in
and pursuing the course on the same basis as similarly circumstanced
students not so employed.
2. A waiver may be granted by the Director, Education Service, or
by the Secretary, pursuant to 38 CFR 21.4005, when the facts show no
detriment to the United States, veterans, or eligible persons will
ensue from the receipt of such services by the SAA officer or employee.
Effective date: July 18, 1994
O.G.C. Precedent 18-94
Question Presented
Whether service as a precadet at the United States Air Force
Academy Preparatory School may be considered ``active duty'' service
for purposes of title 38, United States Code.
Held
Characterization of an individual's service at the United States
Air Force Academy Preparatory School (USAFAPS) for purposes of
entitlement to veterans' benefits depends upon the status in which the
individual enters the USAFAPS. Service by an individual who attends the
USAFAPS as a reservist called to active duty for the sole purpose of
attending the USAFAPS constitutes ``active duty for training.'' This
includes persons who are enlisted directly from civilian life or from
the Air National Guard for the sole purpose of attending the USAFAPS,
as well as members of reserve components who are called to active duty
for this purpose. Service by an enlisted active-duty servicemember who
is reassigned to the USAFAPS without a release from active duty
constitutes a continuation of the servicemember's ``active duty.''
Effective date: October 3, 1994
O.G.C. Precedent 19-94
Question Presented
Is the prerequisite of 38 U.S.C. 5904(c)(1) and 38 CFR 20.609(c)(1)
requiring a final decision by the Board of Veterans' Appeals (BVA)
prior to charging an attorney fee satisfied when a ``repeat'' claim is
filed after a final BVA decision has been issued regarding an earlier,
similar claim, e.g., a claim for pension, an increased rating, a total
rating based on individual unemployability, or service connection for a
prisoner of war (POW) presumptive disease?
Held
The prerequisite of a final decision by the Board of Veterans'
Appeals (BVA) prior to charging an attorney fee contained in 38 U.S.C.
5904(c)(1) and 38 CFR 20.609(c)(1) is satified when a ``repeat claim''
for benefits is filed after a final BVA decision has been issued
regarding an earlier, similar claim, e.g., a claim for pension, an
increased rating, a total rating based upon individual unemployability,
or service connection for a prisoner of war presumptive disease.
Effective date: October 12, 1994
O.G.C. Precedent 20-94
Question Presented
When and under what conditions may the Board of Veterans' Appeals
decide issues in a claim following an appeal to the United States Court
of Appeals for the Federal Circuit from a decision of the United States
Court of Veterans Appeals affirming, or reversing or vacating in whole
or in part and remanding, a decision of the Board?
Held
When an appellant files a timely appeal to the United States Court
of Appeals for the Federal Circuit from a United States Court of
Veterans Appeals decision to affirm or to reverse or vacate in whole or
in part and remand a Board of Veterans' Appeals decision, the Board's
disposition of all aspects of the matter must await the issuance of the
mandate of the Court of Veterans Appeals concluding the appeal.
Effective date: December 2, 1994
O.G.C. Precedent 21-94
Question Presented
Must the need for aid and attendance be permanent in order to
qualify for a higher rate of improved pension?
Held
The statutory provisions in 38 U.S.C. 1502(b), 1521(d), and
1541(d), authorizing an increased improved-pension rate for persons in
need of regular aid and attendance, do not require that the need be
permanent as a predicate to an award of the increased rate. To the
extent that the title of 38 CFR 3.352 suggests that the need must be
permanent, that title is inconsistent with the governing statutes and
should be revised. Increased improved pension based upon the need for
regular aid and attendance may be awarded without regard to whether the
need is permanent.
Effective date: December 13, 1994
O.G.C. Precedent 22-94
Question Presented
What effect does the judicial invalidation of a portion of the
regulations governing effective dates of awards of benefits under the
Restored Entitlement Program for Survivors (REPS) have on the payment
of benefits under that program?
Held
The United States Court of Veterans Appeals and the United States
Court of Appeals for the Federal Circuit, in their decisions in the
Skinner and Cole cases, found Department of Veterans Affairs
regulations establishing time-specific filing requirements for claims
under the Restored Entitlement Program for Survivors (REPS) to be
invalid. For new claims filed after issuance of those decisions and for
claims pending at the time those decisions were issued, REPS benefits
may be awarded without regard to when the claims were filed. Where
claimants whose claims were finally decided prior to issuance of those
decisions file claims for previously-denied REPS benefits based on the
change in interpretation of law reflected in those opinions or on
regulations reflecting that changed interpretation, the claims may be
considered new claims and previously-denied REPS benefits for which the
claimants are otherwise entitled may be awarded [[Page 9721]] without
regard to when the claims were filed. Benefits may be paid beginning
with the first month in which the claimant became eligible for REPS
benefits.
Effective date: December 14, 1994.
By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 95-4141 Filed 2-17-95; 8:45 am]
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