[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Notices]
[Pages 66748-66751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32059]


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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 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 4-96

Question Presented

    Are the provisions of 38 U.S.C. 110 violated when two service-
connected disabilities, which have been erroneously rated as one 
disability at or above a specific evaluation for 20 or more years, are 
rerated as two separate disabilities such that the combination of their 
evaluations equals or exceeds the prior specific evaluation?

Held

    The provisions of 38 U.S.C. 110, which prohibit a disability that 
has been continuously rated at or above any evaluation for 20 or more 
years for compensation purposes from thereafter being rated at less 
than such evaluation, are not violated when two or more service-
connected disabilities, which have been erroneously rated as one 
disability (but not as the result of the combination of known or 
determinable separate disability evaluations under 38 C.F.R. 4.25), at 
or above a specific evaluation for at least 20 years, are rerated as 
separate disabilities such that the combination of their evaluations 
equals or exceeds the prior specific evaluation.

    Effective Date: July 18, 1996.

VAOPGCPREC 5-96

Question Presented

    a. Is the Department of Veterans Affairs (VA) authorized to 
directly pay an attorney's fee from past-due benefits in a case where 
the attorney's representation is limited solely to the proceedings 
before the Court of Veterans Appeals (CVA) and the benefits are awarded 
to the veteran by VA following a CVA remand for additional development?
    b. In a case where an attorney's representation is limited to the 
CVA proceedings and VA grants benefits to the veteran following a CVA 
remand for additional development, must the fee agreement specifically 
mention that it includes benefits awarded for dependents for the 
attorney to be paid

[[Page 66749]]

directly by VA out of a past-due amount paid to the veteran for 
dependents?
    c. Whether a fee agreement must be between the beneficiary of a 
secondary benefit, e.g., a beneficiary entitled to receive past-due 
dependent educational assistance (DEA) benefits, and the attorney in 
order for VA to directly pay attorney fees from the beneficiary's award 
of past-due benefits?

Held

    a. VA is authorized to directly pay an attorney's fee from past-due 
benefits in an appropriate case where the attorney's representation is 
limited solely to the CVA proceedings and the benefits are awarded to 
the veteran by VA following a CVA remand for additional development.
    b. Depending on all of the circumstances involved, it may not be 
necessary for a fee agreement to specifically mention that it includes 
dependency benefits for an attorney to be paid directly by VA out of a 
past-due amount paid to the veteran for dependents.
    c. A fee agreement must be between the beneficiary of a secondary 
benefit and an attorney in order for VA to directly pay the attorney a 
fee from the beneficiary's award of past-due secondary benefits.

    Effective Date: July 24, 1996.

VAOPGCPREC 6-96

Question Presented

    a. Under what circumstances must the Board of Veterans'' Appeals 
(Board) address the issue of entitlement to an extraschedular rating 
under 38 C.F.R. 3.321(b)(1) or 38 C.F.R. 4.16(b) in reviewing claims 
for an increased evaluation for a service-connected disability or a 
total disability rating for compensation based on individual 
unemployability?
    b. In circumstances where the issue of entitlement to an 
extraschedular rating under Sec. 3.321(b)(1) or 4.16(b) must be 
addressed, what procedure should the Board follow when the issue was 
not addressed by the regional office (RO)? Does the Board have 
jurisdiction over extraschedular claims raised for the first time by 
the record or the appellant before the Board?
    c. Is the issue of entitlement to an extraschedular evaluation 
inextricably intertwined with the underlying claim for an increased 
evaluation or a total disability rating based on individual 
unemployability, such that the issues may not be separated by the Board 
for purposes of taking final action on appeal?
    d. If the appellant or the representative raises the issue of a 
rating under Sec. 3.321(b)(1) or 4.16(b) but submits no argument or 
evidence, and the record on appeal contains no evidence that would make 
such a claim plausible, may the Board dismiss the claim as not well-
grounded or conclude that the RO's failure to address the issue of an 
extraschedular evaluation was harmless error because the claim is not 
plausible?

Held

    a. The Board is required to address the issue of entitlement to an 
extraschedular rating under 38 C.F.R. 3.321(b)(1) only in cases where 
the issue is expressly raised by the claimant or the record before the 
Board contains evidence of ``exceptional or unusual'' circumstances 
indicating that the rating schedule may be inadequate to compensate for 
the average impairment of earning capacity due to the disability. The 
Board is required to address the issue of entitlement to a total 
disability rating based on individual unemployability (TDIU rating) 
under 38 C.F.R. 4.16(b) only in cases where the issue is expressly 
raised by the claimant or the record before the Board contains evidence 
that the appellant may be unable to secure or follow a substantially 
gainful occupation due to his or her service-connected disability.
    b. When the issue of entitlement to an extraschedular rating or a 
TDIU rating for a particular service-connected disability or 
disabilities is raised in connection with a claim for an increased 
rating for such disability or disabilities, the Board would have 
jurisdiction to consider that issue. If the Board determines that 
further action by the RO is necessary with respect to the issue, the 
Board should remand that issue.
    c. When the issue of entitlement to an extraschedular rating or a 
TDIU rating arises in connection with an appeal in an increased rating 
case, the Board is not precluded from issuing a final decision on the 
issue of an increased schedular rating and remanding the 
extraschedular-rating or TDIU-rating issue to the RO.
    d. Where the appellant has raised the issue of entitlement to an 
extraschedular rating or a TDIU rating but the record contains no 
evidence which would render the claim plausible, the Board may, subject 
to the considerations expressed in VAOPGCPREC 16-92 and Bernard v. 
Brown, determine that the referral to the appropriate officials for 
consideration of an extraschedular rating or a TDIU rating is not 
warranted.

    Effective Date: August 16, 1996.

VAOPGCPREC 7-96

Question Presented

    Under what circumstances does an increase in an individual's 
indebtedness result from ``a separate and distinct transaction'' for 
purposes of notification of the right to request a waiver of 
indebtedness?

Held

    Notification of waiver rights is necessary when an increase in 
indebtedness is based on circumstances not considered in computation of 
the original indebtedness. Notification is not required when an 
increase is based on the addition of interest to a debt or on a 
technical correction concerning the amount of the original 
indebtedness.

    Effective Date: September 9, 1996.

VAOPGCPREC 8-96

Question Presented

    May the Department of Veterans Affairs (VA) pay the amounts 
represented by several benefit checks received by the guardian of 
certain VA beneficiaries but not negotiated prior to the guardian's 
death, and, if so, to whom should payment be made?

Held

    Section 5122 of title 38, United States Code, does not apply to 
checks received by a guardian on behalf of a VA beneficiary but not 
negotiated prior to the guardian's death. Where such checks have been 
canceled pursuant to the Competitive Equality Banking Act of 1987, 
individuals claiming entitlement to the proceeds of such checks must 
file a claim for those amounts with VA. Any such claim not filed within 
six years after the claim accrues is barred by 31 U.S.C. 3702(b)(1).

    Effective Date: September 26, 1996.

VAOPGCPREC 9-96

Question Presented

    a. Whether VA disability compensation must be offset to recoup the 
amount of Reservists' Special Separation Pay (RSSP) received by a 
veteran under Public Law 102-484?
    b. Whether VA disability compensation must be offset to recoup the 
amount of Reservists' Involuntary Separation Pay (RISP) received by a 
veteran under Public Law 102-484?

Held

    a. The Department of Veterans Affairs (VA) is not authorized under 
section 4416(b) of Public Law No. 102-484 to offset VA disability 
compensation to recoup the amount of Reservists' Special

[[Page 66750]]

Separation Pay (RSSP) received by a veteran pursuant to section 
4416(b).
    b. Section 4418(c) of Public Law 102-484 which provides that the 
provisions of section 1174(h)(2) are applicable to Reservists' 
Involuntary Separation Pay (RISP) and 38 C.F.R. 3.700(a)(5) require VA 
to offset disability compensation to recoup the amount of RISP received 
by a veteran pursuant to section 4418 provided that the VA compensation 
is for a disability incurred in or aggravated by service prior to the 
date of receipt of the RISP.

    Effective Date: October 11, 1996.

VAOPGCPREC 10-96

Question Presented

    Does the action of the Secretary of a Service Department under 10 
U.S.C. 874(b), substituting an administrative discharge for a discharge 
or dismissal executed in accordance with the sentence of a general 
court-martial, remove the statutory bar to benefits under 38 U.S.C. 
5303(a)?

Held

    An upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not 
remove the statutory bar to benefits under 38 U.S.C. 5303(a) for 
individuals discharged or dismissed by reason of the sentence of a 
general court-martial.

    Effective Date: October 28, 1996.

VAOPGCPREC 11-96

Question Presented

    1. Does section 8052 of the Omnibus Budget Reconciliation Act of 
1990 prohibit payment of dependency and indemnity compensation under 38 
U.S.C. 1310 for a veteran's death where the disability from which the 
veteran died resulted from the veteran's alcohol or drug abuse, but 
service connection of the disability was established for disability 
compensation purposes based on a claim filed on or before October 31, 
1990?
    2. Does section 8052 of the Omnibus Budget Reconciliation Act of 
1990 prohibit payment of dependency and indemnity compensation under 38 
U.S.C. 1318 where the disability that was continuously rated totally 
disabling for an extended period immediately preceding a veteran's 
death resulted from the veteran's alcohol or drug abuse, but service 
connection of the disability was established for disability 
compensation purposes based on a claim filed on or before October 31, 
1990?

Held

    Section 8052 of the Omnibus Budget Reconciliation Act of 1990, 
Public Law 101-508, section 8052, 104 Stat. 1388, 1388-351, applicable 
to claims filed after October 31, 1990, precludes an injury or disease 
that is a result of a person's own abuse of alcohol or drugs from being 
considered incurred in line of duty and, consequently, precludes 
resulting disability or death from being considered service connected. 
Section 8052 therefore prohibits the payment of dependency and 
indemnity compensation based on a veteran's death resulting from such a 
disability or on the basis that the veteran was in receipt of or 
entitled to receive compensation for such a disability continuously 
rated totally disabling for an extended period immediately preceding 
death. Even where service connection established for compensation 
purposes in a claim filed on or before October 31, 1990, for a 
disability resulting from a veteran's own alcohol or drug abuse has 
been in effect for ten or more years and would therefore generally be 
protected from severance under the provisions of 38 U.S.C. 1159 and 38 
C.F.R. 3.957, section 8052 prohibits the payment of dependency and 
indemnity compensation in a claim filed after October 31, 1990, based 
on a veteran's death resulting from such a disability or on the basis 
that the veteran was in receipt of or entitled to receive compensation 
for such a disability continuously rated totally disabling for an 
extended period immediately preceding death.

    Effective Date: November 15, 1996.

VAOPGCPREC 12-96

Question Presented

    Whether 38 C.F.R. 3.700(a)(3) or any other legal authority requires 
withholding of a veteran's Department of Veterans Affairs (VA) 
disability compensation to recoup the amount of nondisability severance 
pay received by the veteran from the veteran's armed forces component 
upon discharge from military service.

Held

    Section 1174(h)(2) of title 10, United States Code, which provides 
that there shall be deducted from any disability compensation under 
laws administered by the Department of Veterans Affairs (VA) an amount 
equal to the amount of separation pay received under section 1174 or 
severance pay or readjustment pay received under any other provision of 
law, requires that VA recoup from a veteran's VA disability 
compensation the amount of ``nondisability severance pay'' received by 
the veteran under section 631 of Public Law 96-513. The statement in 38 
C.F.R. 3.700(a)(3), which reflects the statute requiring recoupment of 
disability severance pay, that ``[t]here is no prohibition against 
payment of compensation where the veteran received nondisability 
severance pay'' is of no effect as it is inconsistent with 10 U.S.C. 
1174(h)(2).

    Effective Date: November 21, 1996.

VAOPGCPREC 13-96

Question Presented

    a. Does the protection of service connection provided by 38 U.S.C. 
1159 apply to disabilities compensated under 38 U.S.C. 1151?
    b. Is termination of entitlement to benefits under 38 U.S.C. 1151 
subject to the requirements of 38 C.F.R. 3.105(d)?

Held

    a. The protection of service connection under 38 U.S.C. 1159 is not 
applicable to disabilities compensated under 38 U.S.C. 1151.
    b. Termination of entitlement to benefits under 38 U.S.C. 1151 is 
not subject to the requirements of 38 C.F.R. 3.105(d), regarding 
severance of service connection, but is subject to similar requirements 
under 38 C.F.R. 3.103 and 3.105(a).

    Effective Date: November 25, 1996.

VAOPGCPREC 14-96

Questions Presented

    a. May the Secretary pay attorney fees from the lump-sum proceeds 
of a National Service Life Insurance (NSLI) policy due to the 
beneficiary of that policy pursuant to authority granted in 38 U.S.C. 
5604(d) to directly pay attorney fees from past-due benefits?
    b. Where the proceeds of a NSLI policy are payable to the 
beneficiary in monthly installments, may the Secretary withhold a 
portion of each payment to the beneficiary for purposes of direct 
payment of attorney fees?

Held

    a. The statutory and regulatory provisions applicable to payment of 
attorney fees from past-due benefits, codified at 38 U.S.C. 5904 (c) 
and (d), and 38 C.F.R. Sec. 20.609(h), do not distinguish payment of 
attorney fees in insurance cases from other types of benefit appeals. 
The Secretary may, therefore, directly pay attorney fees from the 
proceeds of a National Service Life Insurance (NSLI) policy payable in 
a lump sum, whenever the requirements for direct payment of attorney 
fees from past-due benefits contained in 38 U.S.C. 5904(c) and (d) are 
met.
    b. The Secretary may directly pay attorney fees from the proceeds 
of a

[[Page 66751]]

NSLI policy payable in monthly installments only from the past-due 
installments which accrued between the date the policy matured and the 
date of the decision granting the proceeds to the beneficiary, provided 
all other requirements for the direct payment of attorney fees from 
past-due benefits contained 38 U.S.C. 5904 (c) and (d) are met.

    Effective Date: November 25, 1996.

    By Direction of the Secretary.
Mary Lou Keener,
General Counsel,
[FR Doc. 96-32059 Filed 12-17-96; 8:45 am]
BILLING CODE 8320-01-P