[Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
[Notices]
[Pages 43186-43188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20490]



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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 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.

VAOPGCPREC 9-95

    Question Presented: Must the value of a life estate in real 
property acquired by inheritance be included in determining annual 
income and net worth for improved-pension purposes?
    Held: The value of a life estate in real property acquired by 
inheritance generally would not constitute income for improved-pension 
purposes. The value of a life estate acquired by inheritance would be 
considered in evaluating a claimant's estate for improved-pension 
purposes, except to the extent that the property serves as the 
claimant's dwelling. In determining whether a claimant's estate is a 
bar to entitlement to improved pension, a determination must be made on 
all the facts of the individual case as to whether it would be 
reasonable that a part of the claimant's estate be consumed for his or 
her maintenance. Effective Date: March 30, 1995

VAOPGCPREC 10-95

    Question Presented: To what extent must the Board of Veterans' 
Appeals employ the nomenclature, diagnostic criteria, and adaptive-
functioning scale of the American Psychiatric Association's Diagnostic 
and Statistical Manual of Mental Disorders, Third Edition, in 
determining appeals involving issues of service connection and rating 
of mental disorders?
    Held: Sections 4.126 and 4.132 of title 38, Code of Federal 
Regulations, which require that diagnoses of mental disorders conform 
to the American Psychiatric Association's Diagnostic and Statistical 
Manual of Mental Disorders (APA Manual), Third Edition (DSM-III) and 
establish the criteria for rating disabilities attributable to mental 
disorders based upon the psychiatric nomenclature and diagnostic 
criteria used in DSM-III, require that the Board of Veterans' Appeals 
(BVA) use the DSM-III nomenclature and diagnostic criteria until such 
time as the regulations are amended. The BVA is not precluded from 
making reference to medical reports which employ the adaptive-
functioning assessment scales of either DSM-III or the fourth edition 
of the APA Manual (DSM-IV). However, the utility of such reports may be 
limited by differences between the terminology and disability levels 
used in those scales and those employed in 38 CFR Sec. 4.132, the 
schedule for rating mental disorders.
    Effective Date: March 31, 1995.

VAOPGCADV 11-95

    Question Presented: May the Department employ a ``fair market 
value'' standard when setting rates for government quarters, in light 
of the Chief Financial Officers Act, which contemplates that agencies 
structure pricing in order to recoup all costs to the Government for 
providing the goods or services?
    Held: OMB Circular A-45, which provides that the costs of quarters 
be set according to the rule of equivalence, or the fair market value, 
is based upon 5 U.S.C. Sec. 5911; this section is an exception to the 
CFO Act requirement that charges for goods and services should reflect 
costs incurred by the Government.
    Effective Date: May 23, 1995.

VAOPGCPREC 12-95

    Questions Presented: a. Under the constructive-notice rule of Bell 
v. Derwinski, 2 Vet. App. 611 (1992), may the failure of an agency of 
original jurisdiction (AOJ) to consider pertinent Department of 
Veterans Affairs (VA) medical records in existence at the time of its 
prior final decision constitute clear and unmistakable error, even 
though such evidence was not actually in the record before the AOJ?
    b. Would those circumstances constitute clear and unmistakable 
error only when the prior final decision of the agency of original 
jurisdiction was rendered after July 21, 1992, the date of the Bell 
decision?
    c. If those circumstances would not constitute clear and 
unmistakable error as to prior final AOJ decisions rendered before July 
21, 1992, would the effective date of an award of benefits in a later 

[[Page 43187]]
reopened claim after July 21, 1992, based on preexisting VA medical 
records be the date the reopened claim is filed?
    Held: a. With respect to final agency of original jurisdiction 
(AOJ) decisions rendered on or after July 21, 1992, an AOJ's failure to 
consider records which were in VA's possession at the time of the 
decision, although not actually in the record before the AOJ, may 
constitute clear and unmistakable error, if such failure affected the 
outcome of the claim.
    b. With respect to final AOJ decisions rendered prior to July 21, 
1992, an AOJ's failure to consider evidence which was in VA's 
possession at the time of the decision, although not actually in the 
record before the AOJ, may not provide a basis for a finding of clear 
and unmistakable error.
    c. When, subsequent to a final AOJ denial prior to July 21, 1992, a 
claim is reopened after July 21, 1992, and benefits are awarded on the 
basis of evidence in VA's possession but not actually in the record at 
the time of the AOJ denial, the effective date of that award will 
generally be the date on which the reopened claim was filed, as 
provided by 38 U.S.C. Sec. 5110(a).
    Effective Date: May 10, 1995.

VAOPGCADV 13-95

    Questions Presented: A. Are VA medical facilities required to 
follow Michigan state law that establishes the duty of state physicians 
to either warn known sex and needle-sharing partners of patients 
infected with the human immunodeficiency virus (HIV), or, in the 
alternative, to provide the State with the names and addresses of the 
patient and known partners?
    B. Does the analysis in VAOPGCADV 9-90, O.G.C. Advisory Opinion 9-
90, which sets out that VA physicians are under no specific duty to 
follow State law in reporting child and elderly abuse, apply to the 
Michigan partner notification law?
    C. To what extent does VA's HIV confidentiality statute, 38 U.S.C. 
Sec. 7332, permit VA physicians to cooperate with the State law and 
should VA physicians cooperate with the State law to that extent?
    Held: A. VA medical facilities are under no legal obligation to 
follow Michigan state law requiring partner notification, or in the 
alternative, disclosure of confidential information, in HIV cases to a 
state public health authority.
    B. The Supremacy Clause analysis set forth in VAOPGCADV 9-90, 
O.G.C. Advisory Opinion 9-90 is applicable in the instant case. 
Nonetheless, VA has the discretionary authority to comply with state 
law to the extent that 38 U.S.C. Secs. 7332 and 5701, as well as the 
Privacy Act of 1974, allows. These provisions would allow the VA 
medical center to disclose the requisite information to the state 
public health authority if the information is submitted pursuant to an 
adequate written request from that entity.
    C. Under the aforementioned provisions, VA physicians (in 
accordance with any policy or guidance that may be established by the 
VA medical center) may disclose HIV test results, but not the patient's 
name, to the spouse or sexual partner (``sexual partner'' as disclosed 
by the patient during examination or counseling) if the physician 
determines, after discussion with the patient, that the patient will 
not be providing the information and the disclosure is necessary to 
protect the health of the spouse or sexual partner. If these legal 
prerequisites have been satisfied, we anticipate a VA physician, in the 
exercise of sound medical and ethical practice, would utilize that 
provision. VA physicians do not have the authority to notify needle-
sharing partners of possible exposure to HIV.
    Effective Date: June 12, 1995

VAOPGCPREC 14-95

    Questions Presented: a. Whether a final, unappealed Department of 
Veterans Affairs (VA) regional office decision is subject to review for 
clear and unmistakable error (CUE) under 38 C.F.R. Sec. 3.105(a), 
where, upon subsequent reopening, the Board of Veterans' Appeals (BVA 
or Board) denied the claim.
    b. Whether a final, unappealed VA regional office decision is 
subject to review for CUE, where the Board subsequently denied 
reopening of the claim.
    Held: a. A claim of clear and unmistakable error under 38 C.F.R. 
Sec. 3.105(a) concerning a final, unappealed regional office decision 
may not be considered where the Board of Veterans' Appeals has reviewed 
the entire record of the claim following subsequent reopening and has 
denied the benefits previously denied in the unappealed decision.
    b. If the Board of Veterans' Appeals concludes that new and 
material evidence sufficient to reopen a prior, unappealed regional 
office decision has not been submitted, and denies reopening, the 
Board's decision does not serve as a bar to a claim of CUE in the prior 
regional office decision.
    Effective Date: May 12, 1995.
VAOPGCPREC 15-95

    Questions Presented: a. Under the provisions of the Final 
Stipulation and Order entered in the case of Nehmer v. United States 
Veterans' Administration:
    (1) should the effective date of an award of dependence and 
indemnity compensation to a veteran's surviving spouse be based on the 
date of an original claim filed in 1987 and finally denied in 1988, 
where, though the veteran served in the Republic of Vietnam during the 
Vietnam era, the surviving spouse did not allege in the original claim 
that the veteran's death was caused by exposure to Agent Orange or 
other herbicides; or
    (2) should the effective date of the award be based on the date of 
a reopened claim, filed in 1993, in which the claimant alleged that the 
veteran's death may have resulted from exposure to Agent Orange?
    b. Do the provisions of the Nehmer Final Stipulation and Order 
governing readjudication of claims apply to claims for burial allowance 
for service-connected death?
    c. If so, may burial allowance based on service-connected death be 
awarded in the case of a veteran buried prior to the effective date of 
the regulation establishing a presumption of service connection for the 
cause of the veteran's death?
    d. If service-connected burial allowance may be paid for a veteran 
buried prior to the effective date of the regulation, would the amount 
payable be determined under the burial allowance statute as in effect 
at the time of burial or that in effect at the time of the change in 
law under which service connection was established?
    Held: a. If you conclude that the original dependence and indemnity 
compensation claim of a veteran's surviving spouse did not allege that 
the veteran's death resulted from a disease which may have been caused 
by exposure to herbicides containing dioxin during the veteran's 
Vietnam-era service in the Republic of Vietnam, and was not denied 
under former 38 C.F.R. Sec. 3.311a(d) (1986), which governed claims 
based on herbicide exposure, the claim does not fall within the scope 
of the Final Stipulation and Order entered in Nehmer v. United States 
Veterans' Administration. In that case, the effective date of a 
subsequent award of dependency and indemnity compensation to the 
surviving spouse following reopening of the claim may not be based on 
the date of the original claim. However, if such a surviving spouse's 
reopened claim involved allegations that the veteran's death from 

[[Page 43188]]
lung cancer may have resulted from exposure to Agent Orange, it would 
be governed by the provisions of the Stipulation pertaining to claims 
filed after the district's court's May 3, 1989, order in Nehmer 
invalidating a portion of the referenced regulations. Under paragraph 5 
of the Final Stipulation and Order, the effective date of the award in 
such a claim must be based on the later of the date of filing of the 
reopened claim or the date of the veteran's death.
    b. The portion of the Final Stipulation and Order in the Nehmer 
case pertaining to readjudication of claim denials voided by the 
district court's May 3, 1989, order in that case applies to claims for 
burial allowance for service-connected death under 38 U.S.C. Sec. 2307, 
if such claims were denied under former 38 U.S.C. Sec. 3.311a(d). 
However, under the circumstances of a particular claim, you may be 
justified in concluding that a burial allowance claim was not denied 
under former section 3.311a(d). In that case, the Final Stipulation and 
Order would not be applicable.
    c. If a claim for service-connected burial allowance under what is 
now 38 U.S.C. Sec. 2307 was denied under former 38 U.S.C. 
Sec. 3.311a(d) and therefore fell within the group of claim denials 
voided by the district court's May 3, 1989, order in the Nehmer case, 
or if entitlement to the nonservice-connected burial benefit was 
previously established, if service connection for the cause of the 
veteran's death is later established on the basis of regulations issued 
pursuant to the Agent Orange Act of 1991, the post-burial effective 
date of those regulations would not be an impediment to payment of a 
burial allowance under section 2307.
    d. The maximum amount of burial allowance payable under section 
2307 is determined based on the maximum rate authorized at the time the 
burial took place. Where nonservice-connected burial benefits have 
already been paid, and it is later determined that entitlement to 
service-connected burial allowance exists, only the difference between 
the amount previously paid and the amount payable under section 2307 
may be paid.
    Effective Date: June 2, 1995.

VAOPGCPREC 16-95

    Question Presented: May the recipient of a VA work-study allowance 
under 38 U.S.C. Sec. 3485, who is assigned by VA to perform work-study 
services at a university, be paid by the university the difference 
between the amount payable by VA and the amount which the university 
otherwise pays to work-study students performing similar services?
    Held: 1. The statutes governing the VA work-study program do not 
expressly bar the student from receiving work-study payments from both 
VA and other sources, public or private, for performance of the same 
work. However, the availability of such other payments has a direct 
bearing on the individual's need for the additional educational 
assistance afforded under the VA work-study program. The Department has 
determined that assistance from another source for performing the same 
work-study activities vitiates the student's need for the supplemental 
educational assistance provided by VA's work-study program. 
Accordingly, VA, in the judicious administration of limited Federal 
resources, has included terms in its standard student work-study 
agreement prohibiting receipt or acceptance of such ``other source'' 
payments.
    2. Nevertheless, that contractual preclusion represents a 
rebuttable presumption of lack of need for the benefit. Thus, the 
standard work-study agreement terms restricting ``other source'' 
payments may be modified, should VA find it meritorious to do so in the 
individual case. This may be an option in the case cited if you 
conclude that receipt of the differential amount does not materially 
affect the individual's need for a VA work-study allowance.
    Effective Date: June 7, 1995.

VAOGCPREC 17-95
    Questions Presented: a. What is the scope of any obligation imposed 
on the Secretary of Veterans Affairs under 38 U.S.C. Sec. 7722, or any 
other legal authority, to inform individuals concerning benefits to 
which they may be entitled? \1\

    \1\ You have requested our views regarding the scope of VA's 
notification obligation under section 7722 ``or any other legal 
authority,'' and we note that a duty to provide notice or 
information to claimants may sometimes arise under statutory 
provisions other than section 7722. See, e.g., 38 U.S.C. Secs. 3563, 
5107(a). However, because we believe that section 7722 provides the 
sole notification obligation pertinent to the specific facts 
described in your opinion request, we have limited our analysis to 
the scope of the duty under that provision. The scope of VA's 
obligation may differ under other statutory provisions.
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    b. Does the assumption that the Department of Veterans Affairs (VA) 
knew or reasonably should have known of an individual's eligibility for 
VA benefits have any bearing on the Secretary's notification 
obligation?
    c. Are the provisions of any applicable notification law or 
regulation, including section 7722, applicable from the date of their 
enactment or retroactively?
    d. May a failure to provide required notification to a claimant be 
the basis of a grant of an earlier effective date of an award of VA 
benefits and, if so, what is the legal authority to deviate from the 
criteria pertaining to effective dates of awards?
    Held: a. The provisions of 38 U.S.C. Sec. 7722, as interpreted by 
the Court of Veterans Appeals, require VA to inform individuals of 
their potential entitlement to Department of Veterans Affairs benefits 
when (1) such individuals meet the statutory definition of ``eligible 
veteran'' or ``eligible dependent,'' and (2) VA is aware or reasonably 
should be aware that such individuals are potentially entitled to VA 
benefits. VA's duty to provide information and assistance to such 
individuals requires only such actions as are reasonable under the 
circumstances.
    b. The notification requirements currently in 38 U.S.C. Sec. 7722 
and previously in 38 U.S.C. Sec. 241 have been in effect since March 
26, 1970, and do not apply retroactively to any period prior to that 
date.
    c. A failure by VA to provide the notice required by 38 U.S.C. 
Sec. 7722 may not provide a basis for awarding retroactive benefits in 
a manner inconsistent with express statutory requirements, except 
insofar as a court may order such benefits pursuant to it general 
equitable authority or the Secretary of Veterans Affairs may award such 
benefits pursuant to his equitable-relief authority under 38 U.S.C. 
Sec. 503(a).
    Effective Date: June 21, 1995.

VAOGCPREC 18-95

    Question Presented: Is the Department of Veterans Affairs' (VA) 
definition of ``past-due benefits'' in 38 C.F.R. Sec. 20.609(h)(3) 
inconsistent with the governing statutory provisions in 38 U.S.C. 
Sec. 5904(d)(3)?
    Held: The definition of ``past-due benefits'' in 38 C.F.R. 
Sec. 20.609(h)(3) is consistent with the provisions of 38 U.S.C. 
Sec. 5904(d)(3). Further, because the language of section 5904(d)(3) 
may reasonably be construed to prohibit counting as past-due benefits 
any amounts payable after the date of the decision making, or ordering 
the making of, the award, we believe that the regulatory amendment 
sought by petitioner would be inconsistent with the statute.
    Effective Date: June 22, 1995.

    By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 95-20490 Filed 8-17-95; 8:45 am]
BILLING CODE 8320-01-M