[Federal Register Volume 63, Number 204 (Thursday, October 22, 1998)]
[Notices]
[Pages 56703-56705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28294]


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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 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 8-98

Question Presented

    a. Does 38 CFR 3.317 preclude compensation for an illness 
manifested by symptoms that could, in some circumstances, be 
attributable to a known clinical diagnosis, even if no such diagnosis 
has been made with respect to the individual seeking compensation?
    b. May the Department of Veterans Affairs (VA) pay compensation 
under 38 U.S.C. 1117 for disability manifested by symptoms that either 
elude diagnosis or are attributed to a poorly-defined disease such as 
chronic fatigue syndrome or fibromyalgia?
Held
    a. Compensation may be paid under 38 CFR 3.317 for disability which 
cannot, based on the facts of the particular veteran's case, be 
attributed to any known clinical diagnosis. The fact that the signs or 
symptoms exhibited by the veteran could conceivably be attributed to a 
known clinical diagnosis under other circumstances not presented in the 
particular veteran's case does not preclude compensation under section 
3.317.
    b. Section 1117(a) of title 38, United States Code, authorizes 
service connection on a presumptive basis only for disability arising 
in Persian Gulf veterans due to ``undiagnosed illness'' and may not be 
construed to authorize presumptive service connection for any diagnosed 
illness, regardless of whether the diagnosis may be characterized as 
poorly defined.
    Effective Date: August 3, 1998.

VAOPGCPREC 9-98

Question Presented

    1. When a knee disorder is rated under Diagnostic Code (DC) 5257 
(instability of the knee), must the claimant have compensable 
limitation of motion under DC 5260 or DC 5261 in order to obtain a 
separate rating for arthritis?
    2. Must 38 CFR 4.40, 4.45, and 4.59 be considered when assigning an 
evaluation for degenerative or traumatic arthritis under DC 5003 or DC 
5010, and if so, how?
    3. When a disability is rated under a specific diagnostic code that 
does not appear to involve limitation of motion, must 38 CFR 4.40, 
4.45, and 4.59 be considered to determine the applicability of another 
diagnostic code that does involve limitation of motion?
    4. What determines whether a particular diagnostic code is 
predicated on loss of range of motion so that sections 4.40 and 4.45 
apply?
    5. Are DC 5259 (removal of the semilunar cartilage) and DC 5284 
(foot injuries) based on loss of range of motion, requiring 
consideration of sections 4.40 and 4.45?

[[Page 56704]]

Held
    1. For a knee disability rated under DC 5257 to warrant a separate 
rating for arthritis based on X-ray findings and limitation of motion, 
limitation of motion under DC 5260 or DC 5261 need not be compensable 
but must at least meet the criteria for a zero-percent rating. A 
separate rating for arthritis could also be based on X-ray findings and 
painful motion under 38 CFR 4.59.
    2. The provisions of 38 CFR 4.40, 4.45, and 4.59 must be considered 
in assigning an evaluation for degenerative or traumatic arthritis 
under DC 5003 or DC 5010. Rating personnel must consider functional 
loss and clearly explain the impact of pain upon the disability.
    3. If a musculoskeletal disability is rated under a specific 
diagnostic code that does not involve limitation of motion and another 
diagnostic code based on limitation of motion may be applicable, the 
latter diagnostic code must be considered in light of sections 4.40, 
4.45, and 4.59.
    4. The medical nature of the particular disability to be rated 
under a given diagnostic code determines whether the diagnostic code is 
predicated on loss of range of motion. Reference should be made to 
appropriate medical authorities.
    5. DC 5259 requires consideration of sections 4.40 and 4.45 because 
removal of the semilunar cartilage may result in complications 
producing loss of motion. Depending on the nature of the foot injury, 
DC 5284 may involve limitation of motion and therefore require 
consideration under sections 4.40 and 4.45.
    Effective Date: August 14, 1998.

VAOPGCPREC 10-98

Question Presented

    a. Does the condition in 38 U.S.C. 5310(b)(1) that a deceased 
veteran's surviving spouse not be entitled to death benefits under 38 
U.S.C. ch. 11, 13, or 15 for the month of the veteran's death require a 
decision on the merits of whether the surviving spouse is entitled to 
death benefits or may VA consider the condition satisfied based on the 
lack of a claim by the surviving spouse for death benefits?
    b. May a veteran's surviving spouse apply for only the benefit 
provided by 38 U.S.C. 5310(b)? If so, may he or she use VA Form 21-534 
for such a claim?
    c. If a claimant uses VA Form 21-534 to claim only the benefit 
provided by 38 U.S.C. 5310(b), must VA also treat the claim as one for 
dependency and indemnity compensation, death pension, and accrued 
benefits? What effect does Isenhart v. Derwinski, 3 Vet. App. 177 
(1992), have on using VA Form 21-534?
    d. If a veteran's surviving spouse is awarded the benefit provided 
under 38 U.S.C. 5310(b) and later establishes entitlement to death 
benefits for the month of the veteran's death at a rate higher than the 
veteran would have received in compensation or pension for that month 
if he or she had not died, is the surviving spouse still entitled to 
the section 5310(b) benefit? What, if any, effect do 38 U.S.C. 5111(c) 
and 38 CFR 3.20(b) and 3.31 have?
Held
    a. Subsection (b) of section 5310, title 38, United States Code, as 
added by section 506 of the Veterans' Benefits Improvements Act of 
1996, Pub. L. 104-275, Sec. 506, 110 Stat. 3322, 3343, provides a 
benefit for the month of a veteran's death if the veteran's surviving 
spouse is not entitled to death compensation, dependency of indemnity 
compensation, or death pension for the month of death. It would be 
reasonable to interpret the condition of nonentitlement to death 
benefits as being satisfied by the lack of any claim for death benefits 
filed by the surviving spouse or by a decision on the merits on the 
question of whether the surviving spouse is entitled to death benefits 
for the month of death. Whichever interpretation the Department of 
Veterans Affairs chooses to adopt, it should be adopted through 
properly issued regulations.
    b. A surviving spouse may apply for only the benefit provided by 38 
U.S.C. 5310(b) and may do so using any form VA prescribes for the 
purpose of applying for that benefit. The form to be used should be 
prescribed by issuing an appropriate regulation.
    c. If, in accordance with VA's prescription, a surviving spouse 
uses VA Form 21-534, Application for Dependency and Indemnity 
Compensation, Death Pension and Accrued Benefits by a Surviving Spouse 
or Child (Including Death Compensation If Applicable), to apply for 
only the benefit provided by 38 U.S.C. 5310(b), VA need not consider 
the claim as one for dependency and indemnity compensation, death 
pension, or accrued benefits.
    d. The establishment of entitlement to death benefits for the month 
of death by surviving spouse who has already been paid the benefit 
provided by 38 U.S.C. 5310(b) negates the entitlement to the section 
5310(b) benefit. If the surviving spouse is entitled to death benefits 
for the month of death at a rate higher than the rate of compensation 
or pension the veteran would have received for that month but for his 
or her death, 38 U.S.C. 5111(c)(1) and 38 CFR 3.20(b) and 3.31 prohibit 
payment on the death benefits award for any period before the first day 
of the month following the calendar month of death.
    Effective Date: September 8, 1998.

VAOPGCPREC 11-98

Question Presented

    May a veteran with a catastrophic, nonservice-connected disability, 
whose income is above the means test threshold and who would otherwise 
be enrolled in priority group 7, be placed in priority group 4 in VA's 
patient enrollment system on the basis of his or her catastrophic 
disability?
Held
    The rules of statutory construction and associated case law support 
enrolling all catastrophically disabled veterans in enrollment category 
four, as directed by section 1705(a)(4), regardless of whether the 
veterans are mandatory or discretionary veterans for purposes of 
section 1710(a).
    Effective Date: September 17, 1998.

VAOPGCPREC 12-98

Question Presented

    a. What is the effective date for an award of increased disability 
compensation pursuant to 38 CFR 3.400(o)(2) where a veteran files a 
claim for increased rating alleging an increase in disability within 
one year prior to receipt by the Department of Veterans Affairs (VA) of 
the claim and a VA examination subsequently substantiates an increase 
in disability?
    b. Is 38 CFR 3.400(q)(1)(i) applicable to a claim for an increased 
rating which is based upon new and material evidence received within 
the appeal period or prior to an appellate decision, and if so, what is 
the effective date for an award of increased compensation pursuant to 
section 3.400(q)(1)(i)?
Held
    a. Pursuant to 38 U.S.C. 5110(b)(2) and 38 CFR 3.400(o)(2), where a 
veteran files a claim for increased rating alleging an increase in 
disability within one year prior to receipt by VA of the claim and a VA 
examination or other medical evidence subsequently substantiates an 
increase in disability, the effective date of the award of increased 
disability compensation is the date as of which it is ascertainable 
based on all of the evidence of record that the increase occurred.
    b.(1) Section 3.400(q)(1)(i) of title 38, Code of Federal 
Regulations, is

[[Page 56705]]

applicable to a claim for increased rating based upon new and material 
evidence submitted prior to expiration of the appeal period or before 
an appellate decision is issued.
    b.(2) When new and material evidence is submitted within the appeal 
period or prior to an appellate decision with regard to a claim for 
increased rating, the effective date for any increased rating is the 
date on which the facts establish the increase in disability occurred 
or the date of the original claim for increase, whichever is later. 
However, if the facts establish that a veteran's disability increased 
within one year prior to receipt by VA of the original claim for 
increased rating, the effective date of the increase is the date on 
which the increase in disability occurred.
    Effective Date: September 23, 1998.

VAOPGCPREC 13-98

Question Presented

    Does a surviving spouse who regains eligibility for dependency and 
indemnity compensation (DIC) under 38 U.S.C. 1311(e) as added by 
section 8207 of the Transportation Equity Act for the 21st Century also 
regain eligibility for medical care under the Department of Veterans 
Affairs Civilian Health and Medical Program (CHAMPVA), for dependents' 
educational assistance, or for loan guaranty benefits?
Held
    A surviving spouse who regains eligibility for dependency and 
indemnity compensation under 38 U.S.C. 1311(e), as added by section 
8207 of the Transportation Equity Act for the 21st Century, Pub. L. 
105-178, Sec. 8207, 112 Stat. 107, 495 (1998), either upon the 
termination of remarriage by death, divorce, or annulment, or upon the 
cessation of living with another person and holding himself or herself 
out openly to the public as that person's spouse, does not regain 
eligibility for medical care under the Department of Veterans Affairs 
Civilian Health and Medical Program (CHAMPVA), for dependents' 
educational assistance, or for loan guaranty benefits.
    Effective Date: September 23, 1998.

VAOPGCPREC 14-98

Question Presented

    a(1). Does 38 U.S.C. 1112(a) establish a presumption of aggravation 
for a chronic disease which existed prior to service but was first 
shown to a compensable degree within the presumptive period following 
service?
     a(2). If it does, must the incremental degree of disability 
allegedly resulting from aggravation first shown during the presumptive 
period be itself compensable, or may aggravation be found by combining 
the degree of preservice disability with the degree of disability first 
presented during the presumptive period?
    b. Is it lawful for an employee of the Board of Veterans' Affairs 
(Board) to remove, temporarily or permanently, an opinion of a Board 
medical advisor from a veteran's claims folder? As an alternative, 
could the Board cover such an opinion in the claims folder with opaque 
paper?
    c. Is the Board required to provide directly to a represented 
veteran a copy of an opinion from an independent medical expert?
Held
     a. Section 1112(a) of title 38, United States Code, does not 
establish a presumption of aggravation for a chronic disease which 
existed prior to service but was first shown to a compensable degree 
within the presumptive period following service.
    b. Where the Board of Veterans' Appeals (Board) determines that it 
would be potentially prejudicial to a claimant for an independent 
medical expert to consider a Board medical advisor opinion which is in 
the claims file, the Board may temporarily remove that document from 
the claims file or temporarily cover the document with opaque paper 
prior to forwarding the file to the independent medical expert. Such 
action would not, in our view, violate 38 U.S.C. 7104(a) (requiring 
Board decisions to be based on the entire record) or 18 U.S.C. 2071 
(prohibiting removal or concealment of Government records). If it is 
determined that the Board is precluded from relying upon a Board 
medical advisor opinion due to the potential for prejudice to the 
claimant, the Board may permanently remove the opinion from the claims 
folder without violating 38 U.S.C. 7104(a). Such removal would not, in 
our view, be unlawful under 18 U.S.C. 2071 as violative of title 38 
requirements. If a claimant requests that a Board medical advisor 
opinion be permanently removed from his or her claims file, the Board 
may permanently remove the opinion pursuant to 5 U.S.C. 552a(d)(2) 
(permitting amendment of agency records that are not accurate, 
relevant, timely, or complete), and such action would not, in our view, 
violate 18 U.S.C. 2071.
    c. The Board of Veterans' Appeals is not required to transmit a 
copy of an independent medical expert opinion directly to a represented 
claimant. Providing the opinion to the claimant's representative, in 
accordance with 38 CFR 20.903, satisfies the requirement in 38 USC 
7109(c) that the Board furnish the claimant with a copy of the opinion.
    Effective Date: October 2, 1998.

    By Direction of the Secretary.
John H. Thompson,
Acting General Counsel.
[FR Doc. 98-28294 Filed 10-21-98; 8:45 am]
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