[Federal Register Volume 64, Number 187 (Tuesday, September 28, 1999)]
[Notices]
[Pages 52374-52376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25131]


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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 04-99

Question Presented

    What evidence is necessary to establish a well-grounded claim for

[[Page 52375]]

compensation under 38 U.S.C. 1117 and 38 CFR 3.317 for disability due 
to an undiagnosed illness suffered by a veteran of the Persian Gulf 
War?

Held

    A well-grounded claim for compensation under 38 U.S.C. 1117(a) and 
38 CFR 3.317 for disability due to undiagnosed illness generally 
requires the submission of some evidence of: (1) Active military, 
naval, or air service in the Southwest Asia theater of operations 
during the Persian Gulf War; (2) the manifestation of one or more signs 
or symptoms of undiagnosed illness; (3) objective indications of 
chronic disability during the relevant period of service or to a degree 
of disability of 10 percent or more within the specified presumptive 
period; and (4) a nexus between the chronic disability and the 
undiagnosed illness. With respect to the second and fourth elements, 
evidence that the illness is ``undiagnosed'' may consist of evidence 
that the illness cannot be attributed to any known diagnosis or, at 
minimum, evidence that the illness has not been attributed to a known 
diagnosis by physicians providing treatment or examination. The type of 
evidence necessary to establish a well-grounded claim as to each of 
those elements may depend upon the nature and circumstances of the 
particular claim. For purposes of the second and third elements, the 
manifestation of one or more signs or symptoms of undiagnosed illness 
or objective indications of chronic disability may be established by 
lay evidence if the claimed signs or symptoms, or the claimed 
indications, respectively, are of a type which would ordinarily be 
susceptible to identification by lay persons. If the claimed signs or 
symptoms of undiagnosed illness or the claimed indications of chronic 
disability are of a type which would ordinarily require the exercise of 
medical expertise for their identification, then medical evidence would 
be required to establish a well-grounded claim. With respect to the 
third element, a veteran's own testimony may be considered sufficient 
evidence of objective indications of chronic disability, for purposes 
of a well-grounded claim, if the testimony relates to non-medical 
indicators of disability within the veteran's competence and the 
indicators are capable of verification from objective sources. Medical 
evidence would ordinarily be required to satisfy the fourth element, 
although lay evidence may be sufficient in cases where the nexus 
between the chronic disability and the undiagnosed illness is capable 
of lay observation.
    Effective Date: May 3, 1999.

VAOPGCPREC 05-99

Question Presented

    For purposes of benefits authorized by section 421 of Pub. L. 104-
204, does the term ``spina bifida'' include neural tube defects, such 
as encephalocele and anencephaly, which do not involve the spinal 
column?

Held

    Pursuant to 38 U.S.C. 1802, chapter 18 of title 38, United States 
Code, applies with respect to all forms of spina bifida other than 
spina bifida occulta. For purposes of that chapter, the term ``spina 
bifida'' refers to a defective closure of the bony encasement of the 
spinal cord, but does not include other neural tube defects such as 
encephalocele and anencephaly.
    Effective Date: May 3, 1999.

VAOPGCPREC 06-99

Question Presented

    a. May a claim for a total disability rating based on individual 
unemployability for a particular service-connected disability be 
considered when a schedular 100-percent rating is already in effect for 
another service-connected disability?
    b. Would any additional benefit be available in the case of a 
veteran having one service-connected disability rated 100-percent 
disabling under the rating schedule and another, separate disability 
for which the veteran has been awarded a TDIU rating?

Held

    a. A claim for a total disability rating based on individual 
unemployability for a particular service-connected disability may not 
be considered when a schedular 100-percent rating is already in effect 
for another service-connected disability.
    b. No additional monetary benefit would be available in the 
hypothetical case of a veteran having one service-connected disability 
rated 100-percent disabling under the rating schedule and another, 
separate disability rated totally disabling due to individual 
unemployability under 38 CFR 4.16(a). Further, the availability of 
additional procedural protections applicable under 38 CFR 3.343(c) in 
the case of a total disability rating based on individual 
unemployability would not provide a basis for consideration of a rating 
under section 4.16(a) where a veteran already has a service-connected 
disability rated 100-percent disabling under the rating schedule.
    Effective Date: June 7, 1999.

VAOPGCPREC 07-99

Question Presented

    A. In view of the amendments made by section 8052 of the Omnibus 
Budget Reconciliation Act of 1990 (OBRA 1990), can a disability due to 
substance abuse caused by a service-connected disability be service 
connected under 38 CFR 3.310(a)?
    B. Can the aggravation by a service-connected disability of a 
nonservice-connected disability arising out of substance abuse be 
service connected under 38 CFR 3.310(a)?
    C. In light of the decision of the United States Court of Appeals 
for Veterans Claims (Veterans Court) in Barela v. West, 11 Vet. App. 
280 (1998), and VAOPGCPREC 2-98, may dependency and indemnity 
compensation (DIC) be considered ``disability compensation''?
    D. May the Department of Veterans Affairs (VA) award DIC based 
either on a veteran's death caused by a disability due to substance 
abuse that was itself secondary to a service-connected disability or on 
a veteran's death while receiving or entitled to receive compensation 
for such a substance-abuse disability that was continuously rated 
totally disabling for an extended period immediately preceding death?

Held

    A. The amendments made by section 8052 of the Omnibus Budget 
Reconciliation Act of 1990, Pub. L. 101-508, Sec. 8052, 104 Stat. 1388, 
1388-351, which are applicable to claims filed after October 31, 1990, 
prohibit the payment of compensation to a veteran under 38 U.S.C. 1110 
or 1131 for service-connected disability (``disability compensation'') 
for a disability that is a result of a veteran's own abuse of alcohol 
or drugs (a ``substance-abuse disability''), and they preclude direct 
service connection of a substance-abuse disability for purposes of all 
VA benefits, including dependency and indemnity compensation. The 
amendments do not preclude service connection under 38 CFR 3.310(a) of 
a substance-abuse disability that is proximately due to or the result 
of a service-connected disease or injury. A substance-abuse disability 
caused by a service-connected disability can be service connected under 
section 3.310(a) for purposes of all VA benefits. However, disability 
compensation cannot be paid for such a disability.
    B. The aggravation of a substance-abuse disability by a service-
connected

[[Page 52376]]

disability can be service connected under section 3.310(a) for purposes 
of all VA benefits. However, disability compensation cannot be paid for 
such aggravation.
    C. Dependency and indemnity compensation is a benefit distinct from 
disability compensation for purposes of the amendments made by section 
8052 of the Omnibus Budget Reconciliation Act of 1990 and is not 
affected by that Act's prohibition on payment of disability 
compensation for substance-abuse disability.
    D. VA may award dependency and indemnity compensation to a 
veteran's survivors based on either the veteran's death from a 
substance-abuse disability secondarily service connected under 38 CFR 
3.310(a) (entitlement established under 38 U.S.C. 1310) or based on a 
veteran's death while in receipt of or entitled to receive compensation 
for a substance-abuse disability secondarily service connected under 
section 3.310(a) and continuously rated totally disabling for an 
extended period immediately preceding death (entitlement established 
under 38 U.S.C. 1318).
    Effective Date: June 9, 1999.

VAOPGCPREC 08-99

Question Presented

    Whether 38 U.S.C. 1910 prohibits the Department of Veterans Affairs 
(VA) from contesting a Government life insurance policy issued as a 
result of administrative error on the basis that the insured carries 
more than $10,000 of Government life insurance in contravention of 38 
U.S.C. 1903?

Held

    a. Where, as a result of administrative error, Government life 
insurance policies issued to the same insured total in excess of 
$10,000 in violation of 38 U.S.C. 1903, the policies are incontestable 
pursuant to 38 U.S.C. 1910 except for fraud or nonpayment of premiums, 
or on the ground that the applicant was not a member of the military or 
naval forces of the United States.
    b. A contract for National Service Life Insurance (NSLI) cannot be 
created by the doctrine of promissory estoppel. To give rise to an NSLI 
contract, there must be a meeting of the minds of the contracting 
parties. Where veterans paid premiums on additional NSLI policies which 
did not belong to them because of erroneous billing by the Department 
of Veterans Affairs (VA), additional NSLI policies in favor of these 
individuals were not created.
    Effective Date: August 11, 1999.

VAOPGCPREC 09-99

Question Presented

    a. Does the Board of Veterans' Appeals (BVA) have the authority to 
adjudicate or address in the first instance the question of timeliness 
of a substantive appeal? If not, what is the appropriate course of 
action for the BVA to take when it raises the issue of timeliness of 
the substantive appeal for the first time on appeal?
    b. What is the appropriate course of action for the BVA to take 
when it discovers for the first time on appeal that no substantive 
appeal has been filed on an issue certified to the BVA for appellate 
review by the agency of original jurisdiction (AOJ)?

Held

    a. The BVA has the authority to adjudicate or address in the first 
instance the question of timeliness of a substantive appeal and may 
dismiss an appeal in the absence of a timely-filed substantive appeal. 
It should, however, afford the claimant appropriate procedural 
protections to assure adequate notice and opportunity to be heard on 
the question of timeliness.
    b. When the BVA discovers in the first instance that no substantive 
appeal has been filed in a case certified to the BVA for appellate 
review by the agency of original jurisdiction, it may dismiss the 
appeal. Again, it should afford the claimant appropriate procedural 
protections.
    Effective Date: August 18, 1999.

VAOPGCPREC 10-99

Question Presented

    Should the accelerated course measurement provisions of 38 CFR 
21.4272(g) be used in determining the total number of credit hours for 
which mitigating circumstances are presumed pursuant to 38 U.S.C. 
3680(a)(3)(B) and 10 U.S.C 16136(b)?

    (Note: For convenience, this opinion discusses the regulation's 
application to 38 U.S.C. 3680(a)(3)(B) and does not further 
reference 10 U.S.C. 16136(b) since the latter statute merely 
requires that the former will apply to persons eligible under the 
chapter 1606, title 10, program.)

Held

    VA regulation, 38 CFR 21.4272(g), which provides a basis (i.e., 
``equivalent credit hours'') for measuring training time when courses 
are pursued during nonstandard terms, is inapplicable to, and should 
not be used in determining whether nonpunitive course withdrawals 
exceed the equivalent of six semester hours for purposes of applying 
the mitigating circumstances exception under 38 U.S.C. 3680(a)(3)(B).
    Effective Date: August 24, 1999.

    By direction of the Secretary.
Leigh A. Bradley,
General Counsel.
[FR Doc. 99-25131 Filed 9-27-99; 8:45 am]
BILLING CODE 8320-01-P