[Federal Register Volume 61, Number 49 (Tuesday, March 12, 1996)]
[Notices]
[Pages 10063-10065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5863]



-----------------------------------------------------------------------


DEPARTMENT OF VETERANS AFFAIRS

Summary of Precedent Opinions of the General Counsel

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

-----------------------------------------------------------------------

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 that 
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 19-95

    Question Presented: To what extent does the six-year limitation 
period imposed by 31 U.S.C. 3702(b) apply to claims resulting from 
nonnegotiation by the payee of checks drawn on veterans' benefit 
appropriations? \1\

    \1\ The Department of Veterans Affairs' (VA's) appropriation 
accounts identified in the request for opinion are 36X0102 
(compensation and pension), 36X0137 (readjustment benefits), and 
36X4023-25 and 36X4125-30 (loan guaranty).
---------------------------------------------------------------------------

    Held: The proceeds of uncashed veterans' benefit checks which have 
been canceled pursuant to the competitive Equality Banking Act of 1987 
(CEBA), Pub. L. No. 100-86, 101 Stat. 552, are not payable unless a 
claim for them is made within six years after the claim accrues, as 
required by the Barring Act, ch. 788, 54 Stat. 1061 (1940) (codified, 
as amended, at 31 U.S.C. 3702(b)), regardless of whether the benefit 
checks were drawn on veterans' benefit appropriations. Claims based on 
checks which have been lost, stolen, paid on a forged endorsement, or 
were never received, and which have been canceled under the CEBA, must 
also be presented within the six-year period specified by section 
3702(b). Section 3702(b) is not applicable, however, to a claim made to 
VA under 38 U.S.C. 5122 by a payee's surviving spouse, child, dependent 
parent, or person who bore the expense of the payee's last sickness and 
burial, as

[[Page 10064]]
specified in 38 U.S.C. 5121(a), for payment of sums represented by a 
check received by the payee but not negotiated before the payee's 
death. Instead, 38 CFR 3.1003(a)(1), which states that there is ``no 
time limit for filing a claim to obtain the proceeds'' of a check 
issued to a payee who died prior to negotiating the check, is 
controlling for claims made under section 5122.
    Effective Date: July 12, 1995.

VAOPGCPREC 20-95

    Question Presented: Under what circumstances must an examiner 
review a veteran's medical records prior to conducting a rating 
examination for compensation and pension purposes?
    Held: Pursuant to the statutory duty under 38 U.S.C. 5107(a) to 
assist a claimant in the development of facts pertinent to a claim, and 
the decisions of the Court of Veterans Appeals interpreting that duty, 
a Department of Veterans Affairs examiner must review a claimant's 
prior medical records when such review is necessary to ensure a fully 
informed examination or to provide an adequate basis for the examiner's 
findings and conclusions. However, such review may not be necessary in 
all cases. The determinations as to whether review of prior medical 
records is necessary in a particular case depends largely upon the 
scope of the examination and the nature of the findings and conclusions 
the examiner is requested to provide.
    Effective Date: July 14, 1995.

VAOPGCPREC 21-95

    Question Presented: Must a recipient of Department of Veterans 
Affairs (VA) benefits who has been notified of waiver rights upon 
adjudication of an overpayment be notified of such rights again when an 
additional overpayment is established based on a separate and distinct 
transaction?
    Held: A recipient of VA benefits who has been notified of his or 
her right to request a waiver of indebtedness arising from an 
overpayment of such benefits must again be notified of waiver rights 
when an additional overpayment is established based on a separate and 
distinct transaction.
    Effective Date: August 24, 1995.

VAOPGCPREC 22-95

    Questions Presented: a. What is the Department of Veterans Affairs' 
(VA's) responsibility concerning the direct payment of attorney fees 
from past-due benefits in cases where representation occurs solely 
before the Court of Veterans Appeals (CVA) and secondary benefits are 
determined to be payable?
    b. (1) Must VA notify an attorney who no longer represents a 
claimant, and whose fee agreement does not call for direct payment of 
fees by VA, that past-due benefits are payable so that the attorney can 
pursue collection of a fee?
    (2) Must VA pay attorney fees from past-due benefits when the 
attorney claiming entitlement to direct payment of fees no longer 
represents the claimant?
    (3) Must VA pay attorney fees from past-due benefits when the 
attorney claiming the fee represented the claimant for only part of the 
time the claim was pending before the CVA?
    Held: a. In cases where attorney representation is limited to 
proceedings before the CVA, VA is authorized to make direct payment of 
attorney fees from past-due secondary benefits if the CVA awards the 
secondary benefits, the fee agreement covers the secondary benefits, 
and the fee agreement complies with the provisions of 38 U.S.C. 
5904(d)(3) and 38 CFR 20.609(h) (i)-(iii).
    b. (1) Absent the claimant's written consent, VA has no authority 
to inform an attorney who is not seeking direct payment of attorney 
fees from VA, and no longer represents the claimant, that his or her 
former client will be receiving a future payment of past-due benefits.
    (2) VA may directly pay attorney fees, to an attorney who 
represented a claimant during a CVA appeal, but no longer represents 
the claimant, if the statutory and regulatory prerequisites for direct 
payment of fees are met and the fee agreement provides for direct 
payment.
    (3) VA's obligation to pay attorney fees when the attorney fee 
agreement was only in place for part of the time the case was pending 
before the CVA is dependent upon the terms of the fee agreement and 
whether the statutory and regulatory prerequisites for direct payment 
of attorney fees have been met.
    Effective Date: September 28, 1995.

VAOPGCPREC 23-95

    Question Presented: Under what circumstances do residential 
rehabilitation services provided to a veteran in a private facility at 
Department of Veterans Affairs (VA) expense constitute hospital 
treatment or institutional or domiciliary care furnished by the United 
States for purposes of the $1,500 estate limitation of 38 U.S.C. 
5503(b)(1)(A) and 38 CFR 3.557(b)?
    Held: The provisions of 38 U.S.C. 5503(b)(1)(A) and 38 CFR 3.557(b) 
generally require withholding of compensation and pension payments from 
incompetent veterans with estates in excess of $1,500 who have neither 
a spouse nor child and who are being furnished hospital treatment or 
institutional or domiciliary care by the United States or any political 
subdivision thereof. The terms of the statute and regulation encompass 
services provided by a private facility at government expense. 
Determination of whether the services provided to a particular veteran 
by a private facility fit any of the statutory categories of hospital 
treatment or institutional or domiciliary care requires an examination 
of the veteran's files to determine the nature and purpose of the 
services. With regard to hospital treatment, an assessment should be 
made as to whether the facility may be considered an institution the 
purpose of which is to provide medical and surgical care to sick, 
injured, or infirm persons and whether the veteran received such care 
at the institution. In the case of institutional care, a determination 
should be made whether the facility may be considered a charitable or 
public establishment which had custody of the veteran and which 
provided supervision or management of the veteran, having assumed 
responsibility for the veteran's well being. Finally, with respect to 
domiciliary care, the same factors concerning custody and supervision 
would be relevant. In addition, an assessment should be made concerning 
the permanence of the veteran's residence at the facility and whether 
the medical services provided the veteran were consistent with those 
generally associated with a domiciliary facility.
    Effective Date: October 5, 1995.

VAOPGCPREC 24-95

    Questions Presented: a. Are the provisions of 38 CFR 3.557 and 
3.853 applicable in cases where a veteran has alleged but failed to 
establish the existence of a spouse or child, or, for section 3.853 
purposes, a dependent parent, and is therefore being paid as a veteran 
without dependents?
    b. Does the failure of a veteran to comply with the Department of 
Veterans Affairs' (VA) request pursuant to 38 CFR 3.216 for the social 
security number of a spouse, child, or dependent parent upon whom the 
veteran relies to avoid the application of 38 CFR Secs. 3.557 or 3.853 
require VA to terminate benefit payments to the veteran?
    Held: a. Where the other statutory criteria have been met and it 
has not been established by satisfactory evidence that a veteran has a 
spouse or child, the provisions of 38 U.S.C. 5503(b)(1)(A), as 
implemented by 38 CFR 3.557, requiring discontinuance of

[[Page 10065]]
compensation or pension payments to an incompetent veteran having 
neither spouse nor child, institutionalized at government expense, and 
having an estate of $1,500 or more, are applicable. Where the other 
criteria have been met and it has not been established that a veteran 
has a spouse, child, or dependent parent, the provisions of former 38 
U.S.C. 5505, as implemented by 38 CFR 3.853, requiring discontinuance 
of compensation payments to an incompetent veteran having neither 
spouse, child, nor dependent parent and having an estate in excess of 
$25,000, are applicable.
    b. The provisions of 38 U.S.C. 5101(c), as implemented by 38 CFR 
3.216, require any person who applies for or is in receipt of 
compensation or pension to furnish VA upon request with their social 
security number and that of any dependent on whose behalf, or based 
upon whom, benefits are sought or received. Failure of a veteran to 
supply the social security number of a spouse, child, or, in the case 
of former section 5505, dependent parent upon whom the veteran relies 
to avoid the application of 38 U.S.C. 5503(b)(1)(A) or former 38 U.S.C. 
5505 would be grounds for termination of benefits pursuant to 38 U.S.C. 
5101(c)(2), which requires termination of benefits for failure to 
comply with a request for a social security number.
    Effective Date: October 27, 1995.

VAOPGCPREC 25-95

    Question Presented: Does application by the Board of Veterans' 
Appeals (BVA or Board) of a subsequently-invalidated regulation 
constitute ``obvious error'' and provide a basis for reconsideration of 
the Board's decision?
    Held: The Board's application of a subsequently-invalidated 
regulation in a decision does not constitute ``obvious error'' or 
provide a basis for reconsideration of the decision.
    Effective Date: December 6, 1995.

VAOPGCPREC 26-95

    Question Presented: May the Secretary (1) guarantee a loan; or (2) 
approve a Specially Adapted Housing grant for an otherwise eligible 
veteran to purchase a residence when title to the property will be held 
in a Family Living Trust?
    Held: 1. An otherwise qualified veteran may obtain a VA guaranteed 
housing loan where the title to the property will be held in a Family 
Living Trust that ensures the veteran, or veteran and spouse, an 
equitable life estate, provided the lien attaches to any remainder 
interest and the trust arrangement is valid under State law and title 
is otherwise generally acceptable to lenders, attorneys, title 
companies, and informed buyers in the community where the property is 
located. The initial decision regarding validity of the lien and trust 
arrangement under State law may be made by the lender, subject to VA's 
right to adjust the claim under 38 CFR 36.4325 if the lien proves not 
to be valid.
    2. Due to current regulations, the Family Living Trust arrangement 
will not provide the veteran with sufficient ownership interest in the 
unit to qualify for a Specially Adapted Housing grant.
    3. The Secretary is urged to consider amending the regulations to 
specifically address Living Trusts in both the loan and grant programs.


    Effective Date: December 15, 1995.

    By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 96-5863 Filed 3-11-96; 8:45 am]
BILLING CODE 8320-01-M