[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)]
[Rules and Regulations]
[Pages 68665-68666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33076]


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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 14

RIN 2900-AI39


Miscellaneous Regulations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations by removing an unnecessary provision that 
states all decisions will conform to the statutes and regulations of 
the Department of Veterans Affairs and to the precedent opinions of the 
General Counsel. The intended effect of this amendment is to eliminate 
unnecessary regulations. This document also makes clarifying changes to 
the regulations concerning criteria for determining need for aid and 
attendance, and to those dealing with the effect of written precedent 
opinions of the General Counsel.

EFFECTIVE DATE: This amendment is effective December 30, 1996.

FOR FURTHER INFORMATION CONTACT: Steve Tomasek, Consultant, Procedures 
Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, 
Washington, DC 20420, telephone (202) 273-7256.

SUPPLEMENTARY INFORMATION: 38 CFR 3.101 states that all decisions of 
the Department of Veterans Affairs will conform to the statutes and 
regulations of the Department of Veterans Affairs and to the precedent 
opinions of the General Counsel. That an agency must comply with its 
governing statutes and its own regulations, which have the force and 
effect of law, is such a fundamental legal concept that a regulation 
specifically requiring such compliance is unnecessary.
    38 CFR 14.507 indicates that General Counsel opinions designated as 
precedential will be considered binding on VA officials as legal 
interpretations of general applicability. This document revises 38 CFR 
14.507(b) to more clearly state that precedent opinions are binding on 
VA officials and employees in subsequent matters involving a legal 
issue decided by the precedent opinion. Accordingly, there is no need 
to state separately in part 3 that VA decisions must conform to VA 
precedent opinions. For the foregoing reasons, this document amends VA 
adjudication regulations by removing section 3.101.
    This document revises 38 CFR 14.507(b) by adding at the end thereof 
a sentence stating that an opinion designated as a precedent is binding 
on VA officials and employees in subsequent matters involving a legal 
issue decided in the precedent opinion, unless there has been a 
material change in a controlling statute or regulation or the opinion 
has been overruled or modified by a subsequent precedent opinion or 
judicial decision. Also, a minor conforming change is made to 38 CFR 
14.507(a). These changes merely clarify the provisions of the current 
regulation.
    Currently, 38 CFR 14.507(b) authorizes the VA General Counsel to 
designate as a ``precedent opinion'' any General Counsel opinion having 
significance beyond the particular case or matter at issue in the 
opinion. The term ``precedent'' has a well-established legal meaning 
indicating an interpretation of law by a competent authority which is 
considered binding or persuasive in subsequent cases involving the same 
issue of law. Further, section 14.507(b) currently provides that 
General Counsel precedent opinions are subject to the provisions of 5 
U.S.C. 552(a)(1), which requires Federal agencies to publish in the 
Federal Register, among other things, ``interpretations of general 
applicability formulated and adopted by the agency.'' Although section 
14.507(b) presently indicates that General Counsel precedent opinions 
will be generally applicable and binding on VA employees and officials 
with respect to matters involving the same question of law, we believe 
it would be helpful to state the binding effect of precedent opinions 
in clearer terms.
    This document also revises the heading of section 3.352 of the 
adjudication regulations. Currently the heading reads ``Criteria for 
permanent need for aid and attendance and `permanently bedridden.' '' 
The heading is revised to read ``Criteria for determining need for aid 
and attendance and `permanently bedridden.' '' The revised heading more 
accurately indicates that section 3.352 concerns entitlement to 
increased pension, compensation, or dependency and indemnity 
compensation based on an individual's need for the regular aid and 
attendance of another person without regard to whether or not such need 
is permanent.
    Since this rulemaking merely removes an unnecessary nonsubstantive 
provision and makes clarifying changes, the Secretary finds under 5 
U.S.C. 553(b) that prior notice and comment are unnecessary and that 
there is a basis for dispensing with a 30-day delay of the effective 
date.
    The Secretary hereby certifies that these regulatory amendments 
would not have a significant impact on a

[[Page 68666]]

substantial number of small entities as they are defined in the 
Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The amendments 
would not directly affect any small entities. Therefore, pursuant to 5 
U.S.C. 605(b), these amendments are exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.
    There are no applicable Catalog of Federal Domestic Assistance 
program numbers.

List of Subjects

38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans.

38 CFR Part 14

    Administrative practice and procedure, Claims, Courts, Foreign 
relations, Government employees, Lawyers, Legal services, Organization 
and functions (Government agencies), Reporting and recordkeeping 
requirements, Surety bonds, Trusts and trustees, Veterans.

    Approved: December 9, 1996.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 parts 3 and 14 are 
amended as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


Sec. 3.101  [Removed]

    2. Section 3.101 is removed.
    3. The section heading of Sec. 3.352 is revised to read as follows:


Sec. 3.352  Criteria for determining need for aid and attendance and 
``permanently bedridden.''

PART 14--LEGAL SERVICES, GENERAL COUNSEL

    4. The authority citation for part 14 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 
5502, 5902-5905, unless otherwise noted.


Sec. 14.507  [Amended]

    5. In Sec. 14.507, the first sentence of paragraph (a) is amended 
by removing the words ``is a change'' and adding, in their place, the 
words ``has been a material change'', and paragraph (b) is amended by 
adding at the end thereof the words ``An opinion designated as a 
precedent opinion is binding on Department officials and employees in 
subsequent matters involving a legal issue decided in the precedent 
opinion, unless there has been a material change in a controlling 
statute or regulation or the opinion has been overruled or modified by 
a subsequent precedent opinion or judicial decision.''
[FR Doc. 96-33076 Filed 12-27-96; 8:45 am]
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