[Federal Register Volume 62, Number 135 (Tuesday, July 15, 1997)]
[Notices]
[Pages 37952-37955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18495]


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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. The 
summary is 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

[[Page 37953]]

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 11-97

Questions Presented

    a. Do any of the amendments to the Department of Veterans Affairs 
(VA) Schedule for Rating Disabilities pertaining to ratings for mental 
disorders, which became effective November 7, 1996, contain 
liberalizing criteria?
    b. Must the Board of Veterans' Appeals (Board) remand claims 
involving ratings for mental disorders which were pending on November 
7, 1996, to permit the agency of original jurisdiction (AOJ) to 
consider the effect of the amended regulations in the first instance?

Held

    a. Questions as to whether any of the recent amendments to VA's 
rating schedule pertaining to mental disorders are more beneficial to 
claimants than the previously-existing provisions must be resolved in 
individual cases where those questions are presented. The determination 
as to whether a particular amended regulation is more favorable to a 
claimant than the previously-existing regulation may depend upon the 
facts of the particular case.
    b. Where a regulation is amended during the pendency of an appeal 
to the Board of Veterans' Appeals (Board), the Board must first 
determine whether the amended regulation is more favorable to the 
claimant than the prior regulation, and, if it is, the Board must apply 
the more favorable provision. Under VAOPGCPREC 16-92 (O.G.C. Prec. 16-
92) and Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), the Board may 
consider regulations not considered by the agency of original 
jurisdiction if the claimant will not be prejudiced by the Board's 
action in applying those regulations in the first instance. With 
respect to claims pending on November 7, 1996, which involve ratings 
for mental disorders, the Board may determine whether the amended 
regulations, which became effective on that date, are more favorable to 
the claimant and may apply the more favorable regulation, unless the 
claimant will be prejudiced by the Board's actions in addressing those 
questions in the first instance. The Board is free to adopt a rule 
requiring notice to a claimant when a pertinent change in a statute or 
regulation occurs prior to a final Board decision on a claim and 
permitting the claimant to waive the opportunity for a remand to the 
agency of original jurisdiction for initial consideration of the new 
statute or regulation.
    Effective Date: March 25, 1997.

VAOPGCPREC 12-97

Question Presented

    a. Whether an attorney representing a successful claimant before 
the Department of Veterans Affairs (VA) may collect attorney fees under 
the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d), and 
from past-due benefits under 38 U.S.C. Sec. 5904(d), without refunding 
to the claimant the amount of the smaller fee?
    b. If an attorney may not collect both an EAJA fee and a section 
5904(d) fee without refunding to the claimant the smaller fee, what 
action must the Board of Veterans' Appeals (Board) take where the 
attorney is otherwise eligible for attorney fees under both the EAJA 
and 38 U.S.C. Sec. 5904(d)?
    c. Where a case has been remanded or reversed by the United States 
Court of Veterans Appeals (CVA), must the Board, as a matter of 
practice, in making its determination as to either payment of attorney 
fees from past-due benefits under 38 U.S.C. Sec. 5904(d) or 
reasonableness of fee under 38 U.S.C. Sec. 5904(c)(2) determine whether 
the attorney has received fees under the EAJA?

Held

    a. The claimant's attorney is permitted to seek recovery of 
attorney fees under both 38 U.S.C. Sec. 5904 and 28 U.S.C. Sec. 2412. 
Section 506(c) of the Federal Courts Administration Act of 1992 
expressly provides that, where the claimant's attorney receives fees 
for the same work under both 38 U.S.C. Sec. 5904(d) and 28 U.S.C. 
Sec. 2412, the claimant's attorney must refund to the claimant the 
amount of the smaller fee. The attorney may keep the larger of the fees 
recovered, but must return the amount of the smaller fee to the 
claimant.
    b. There is no authority for the Board to take any action, such as 
offset of the amount of the EAJA fees, to ensure that the attorney 
fulfills his responsibility to refund the smaller fee to the claimant.
    c. Where the case has been remanded or reversed by the CVA, the 
Board does not have to first determine whether the attorney has 
received fees under the EAJA to determine whether attorney fees are 
payable directly by VA from past-due benefits under section 5904(d). 
Where the attorney fee agreement does not require direct payment by VA 
from past-due benefits under section 5904(d), the Board's review of the 
agreement under 38 U.S.C. Sec. 5904(c)(2), to determine whether the fee 
is excessive or unreasonable, may require the Board to determine 
whether the attorney has received fees under the EAJA and if so, the 
impact of the EAJA fees on the reasonableness of the agreed-upon fee. 
Thus, where a case has been remanded or reversed by the CVA, the Board, 
in making its determination as to whether the attorney fee is excessive 
or unreasonable under 38 U.S.C. Sec. 5904(c)(2), must determine on a 
case-by-case basis the impact of any attorney fees received under the 
EAJA.
    Effective Date: March 26, 1997.

VAOPGCPREC 13-97

Question Presented

    May a total disability rating based on individual unemployability 
be reduced based solely on a veteran's removal from the ``work possible 
environment''?

Held

    There is no statutory or regulatory authority for VA to reduce a 
total disability rating based on individual unemployability, as 
authorized by 38 C.F.R. Secs. 3.340(a), 3.341(a), 4.16(a), based solely 
on a veteran's removal from a ``work possible environment.'' Such 
reduction of a total disability rating based on individual 
unemployability would be inconsistent with the requirement of 38 C.F.R. 
Sec. 3.343(c)(1) that, in order to reduce such a rating, actual 
employability be established by clear and convincing evidence.
    Effective Date: April 7, 1997.

VAOPGCPREC 14-97

Question Presented

    May a work related injury sustained by a veteran who is receiving 
employment services as part of a ``vocational rehabilitation program'' 
under chapter 31 of title 38, United States Code, be considered the 
result of ``pursuit of a course of vocational rehabilitation under 
chapter 31,'' for purposes of entitlement to compensation under 38 
U.S.C. Sec. 1151?

Held

    An individual participating in a chapter 31 ``vocational 
rehabilitation program'' (as defined in 38 U.S.C. Sec. 3101(9)) is not, 
solely by virtue of that status, considered in ``pursuit of a course of 
vocational rehabilitation'' for purposes of 38 U.S.C. Sec. 1151. The 
intent of the section 1151 provisions pertinent

[[Page 37954]]

to this matter is to provide compensation for injuries sustained only 
as a result of pursuing vocational rehabilitation training to achieve 
employability, not as a result of engaging in post-training employment. 
Thus, a chapter 31 ``vocational rehabilitation program'' participant 
who is receiving only a period of employment services while engaged in 
post-training employment is not pursuing ``a course of vocational 
rehabilitation'' within the meaning of section 1151 so as to qualify 
for disability compensation benefits under that section.
    Effective Date: April 7, 1997.

VAOPGCPREC 15-97

Questions Presented

    a. Are interest payments received from bonds issued by Menominee 
Enterprises, Inc. countable as income for purposes of determining 
entitlement to improved pension?
    b. Are interest payments received from such bonds countable as 
income under the section 306 pension program, the old law pension 
program, or the parents' dependency and indemnity compensation program?

Held

    a. Interest payments received by individuals based upon their 
status as holders of bonds issued by Menominee Enterprises, Inc., a 
corporation formed upon termination of Federal supervision of the 
Menominee Indian Tribe, must be included in annual income for purposes 
of determining eligibility for improved pension.
    b. Interest payments received by individuals based on their status 
as holders of bonds issued by Menominee Enterprises, Inc. are likewise 
countable as income for purposes of determining entitlement under the 
section 306 pension, old law pension, and parents' dependency and 
indemnity compensation programs.
    Effective Date: April 10, 1997.

VAOPGCPREC 16-97

Questions Presented

    a. Whether, under Section 502 of the Veterans' Benefits 
Improvements Act of 1996, which added section 38 U.S.C. Sec. 5313A, the 
period for which the clothing allowance of certain incarcerated 
veterans is to be reduced begins on the first day of incarceration or 
on the sixty-first day of incarceration.
    b. Whether the amendment made to 38 U.S.C. Sec. 5121(a) by section 
507 of the Veterans' Benefits Improvements Act of 1996, which increased 
from one year to two years the period for which accrued benefits may be 
paid, applies only in claims involving deaths which occur on or after 
October 9, 1996, the date of enactment of the amendment.

Held

    a. Section 5313A of title 38, United States Code, as added by 
section 502 of the Veterans' Benefits Improvements Act of 1996, 
requires that the Department of Veterans Affairs reduce the annual 
clothing allowance payable under 38 U.S.C. Sec. 1162 to certain 
incarcerated veterans by 1/365th for each day on which the veteran was 
incarcerated during the twelve-month period preceding the date on which 
the payment of the allowance would be due, beginning with the sixty-
first day of the period of incarceration.
    b. Section 5121(a) of title 38, United States Code, as amended by 
section 507 of the Veterans' Benefits Improvements Act of 1996, which 
authorizes payment of accrued benefits for a period of two years prior 
to the death of an individual entitled to periodic monetary benefits at 
death under existing ratings or decisions or based on evidence on file 
at the date of death, is applicable in claims for accrued benefits 
based on deaths which occurred prior to the October 9, 1996, date of 
enactment of the amending statute which were not finally decided prior 
to that date.
    Effective Date: April 17, 1997.

VAOPGCPREC 17-97

Questions Presented

    a. Under what circumstances may a veteran attending school as part 
of a vocational rehabilitation program under chapter 31 of title 38, 
United States Code, be paid directly for ``tuition, fees, and 
miscellaneous expenses, etc.''?
    b. Can such payment for ``tuition, fees, and miscellaneous 
expenses, etc.'' be withheld to satisfy an existing account receivable 
for overpayment of subsistence allowance under the chapter 31 program?

Held

    1. When VA, in its discretion, determines the facts and equities of 
the individual circumstances so warrant, it may directly reimburse an 
eligible veteran for the costs of tuition and fees, necessary supplies, 
and services paid by the veteran which VA retroactively approves as a 
required part of a vocational rehabilitation program under chapter 31 
of title 38, United States Code.
    2. VA may deduct the amount of a veteran's existing VA benefits 
program debt from the amount due the veteran as a retroactive chapter 
31 reimbursement payment.
    Effective Date: May 2, 1997.

VAOPGCPREC 18-97

Question Presented

    Does the presumption of service connection established in 38 U.S.C. 
Sec. 1116 and 38 CFR Secs. 3.307(a)(6) and 3.309(e) for diseases 
associated with herbicide exposure apply to both primary cancers and 
cancers resulting from metastasis?

Held

    Presumptive service connection may not be established under 38 
U.S.C. Sec. 1116 and 38 CFR 3.307(a) for a cancer listed in 38 CFR 
3.309(e) as being associated with herbicide exposure, if the cancer 
developed as the result of metastasis of a cancer which is not 
associated with herbicide exposure. Evidence sufficient to support the 
conclusion that a cancer listed in section 3.309(e) resulted from 
metastasis of a cancer not associated with herbicide exposure will 
constitute ``affirmative evidence'' to rebut the presumption of service 
connection for purposes of 38 U.S.C. Sec. 1113(a) and 38 CFR 3.307(d). 
Further, evidence that a veteran incurred a form of cancer which is a 
recognized cause, by means of metastasis, of a cancer listed in 38 CFR 
3.309(e) between the date of separation from service and the date of 
onset of the cancer listed in section 3.309(e) may be sufficient, under 
38 U.S.C. Sec. 1113(a) and 38 CFR 3.307(d), to rebut the presumption of 
service connection.
    Effective Date: May 2, 1997

VAOPGCPREC 19-97

Question Presented

    Under what circumstances may service connection be established for 
tobacco-related disability or death on the basis that such disability 
or death is secondary to nicotine dependence which arose from a 
veteran's tobacco use during service?

Held

    a. A determination as to whether service connection for disability 
or death attributable to tobacco use subsequent to military service 
should be established on the basis that such tobacco use resulted from 
nicotine dependence arising in service, and therefore is secondarily 
service connected pursuant to 38 CFR Sec. 3.310(a), depends upon 
whether nicotine dependence may be considered a disease for purposes of 
the laws governing veterans' benefits, whether the veteran acquired a 
dependence on nicotine in service, and whether that dependence may be 
considered the

[[Page 37955]]

proximate cause of disability or death resulting from the use of 
tobacco products by the veteran. If each of these three questions is 
answered in the affirmative, service connection should be established 
on a secondary basis. These are questions that must be answered by 
adjudication personnel applying established medical principles to the 
facts of particular claims.
    b. On the issue of proximate cause, if it is determined that, as a 
result of nicotine dependence acquired in service, a veteran continued 
to use tobacco products following service, adjudicative personnel must 
consider whether there is a supervening cause of the claimed disability 
or death which severs the causal connection to the service-acquired 
nicotine dependence. Such supervening causes may include sustained full 
remission of the service-related nicotine dependence and subsequent 
resumption of the use of tobacco products, creating a de novo 
dependence, or exposure to environmental or occupational agents.
    Effective Date: May 13, 1997.

VAOPGCPREC 20-97

Questions Presented

    a. What is the meaning of the term ``constitutionally 
psychopathic'' as used in 38 CFR Sec. 3.354(a)?
    b. Does the definition of insanity in 38 CFR Sec. 3.354(a) exclude 
behavior which is due to a personality disorder or a substance-abuse 
disorder, except where a psychosis is also present?
    c. What are the intended parameters of the types of behavior which 
are defined as insanity in 38 CFR Sec. 3.354(a)?
    (1) Does the definition of insanity include behavior involving a 
minor episode, or episodes, of disorderly conduct or eccentricity, if 
the behavior is due to a disease?
    (2) How significantly must an individual's behavior deviate from 
his or her ``normal method of behavior'' for the person to be 
considered insane under 38 CFR Sec. 3.354(a)? Is this a purely 
subjective standard?
    (3) What is the meaning of the phrase ``interferes with the peace 
of society,'' and to what extent must an individual ``interfere'' with 
society's peace to meet the definition of insane?
    (4) What is the meaning of the phrase ``become antisocial'' as used 
in 38 CFR Sec. 3.354(a)?
    (5) Are the ``accepted standards of the community to which by birth 
and education he belongs,'' as referred to in 38 CFR Sec. 3.354(a), 
necessarily identical with the ``social customs of the community in 
which he resides?'' If not, must an individual both deviate from the 
standards of his community of ``birth and education'' as well as be 
unable to adapt in order to further adjust ``to the social customs of 
the community in which he resides,'' in order to meet the regulatory 
definition of insanity? What evidence, if any, would be necessary to 
establish either or both such community standards?

Held

    a. The term ``constitutionally psychopathic'' in 38 CFR 
Sec. 3.354(a) refers to a condition which may be described as an 
antisocial personality disorder.
    b. Behavior which is attributable to a personality disorder does 
not satisfy the definition of insanity in section 3.354(a). Assuming 
that a particular substance-abuse disorder is a disease for disability 
compensation purposes, behavior which is generally attributable to such 
disorders does not exemplify the severe deviation from the social norm 
or the gross nature of conduct which is generally considered to fall 
with the scope of the term insanity and therefore does not constitute 
insane behavior under section 3.354(a).
    c.(1) Behavior involving a minor episode or episodes of disorderly 
conduct or eccentricity does not fall within the definition of insanity 
in section 3.354(a).
    c.(2) Determination of the extent to which an individual's behavior 
must deviate from his or her normal method of behavior for purposes of 
section 3.354(a) may best be resolved by adjudicative personnel on a 
case-by-case basis in light of the authorities defining the scope of 
the term insanity.
    c.(3) The phrase ``interferes with the peace of society'' in 38 CFR 
Sec. 3.354(a) refers to behavior which disrupts the legal order of 
society. Determination of the extent to which an individual must 
interfere with the peace of society so as to be considered insane for 
purposes of section 3.354(a) may be resolved by adjudicative personnel 
on a case-by-case basis in light of the authorities defining the scope 
of the term insanity.
    c.(4) The term ``become antisocial'' in 38 CFR Sec. 3.354(a) refers 
to the development of behavior which is hostile or harmful to others in 
a manner which deviates sharply from the social norm and which is not 
attributable to a personality disorder.
    c.(5) Reference in 38 CFR Sec. 3.354(a) to ``accepted standards of 
the community to which by birth and education'' an individual belongs 
requires consideration of an individual's ethnic and cultural 
background and level of education. The regulatory reference to ``social 
customs of the community'' in which an individual resides requires 
assessment of an individual's conduct with regard to the contemporary 
values and customs of the community at large.
    Effective Date: May 22, 1997.

VAOPGCPREC 21-97

Question Presented

    Are amounts received as per capita distributions of revenues from 
gaming activity on tribal trust property considered income for purposes 
of improved pension, section 306 pension, old-law pension, or parent's 
dependency and indemnity compensation (DIC)?

Held

    Amounts received by an individual pursuant to a per capita 
distribution of proceeds from gaming on Indian trust lands pursuant to 
the Indian Gaming Regulatory Act are considered income for purposes of 
Department of Veterans Affairs income-based benefits.
    Effective Date: May 23, 1997.

    By Direction of the Secretary.
Mary Lou Keener,
General Counsel.
[FR Doc. 97-18495 Filed 7-14-97; 8:45 am]
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