[Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)]
[Notices]
[Pages 19808-19810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9734]



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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. 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. [[Page 19809]] 

VAOPGCPREC 2-95

Question Presented

    Do the provisions of 38 U.S.C. Sec. 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 non-government 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 service-connected 
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 rating-protection 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 
[[Page 19810]] 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]
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