[Federal Register Volume 65, Number 26 (Tuesday, February 8, 2000)]
[Notices]
[Pages 6256-6258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2762]


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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

[[Page 6257]]

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 11-99

Question Presented

    a. To the extent that provisions in the Veterans Benefits 
Administration (VBA) (formerly Department of Veterans Benefits) 
Adjudication Procedures Manual M21-1 extant in 1964 purported to 
constitute an absolute bar to service connection for retinitis 
pigmentosa, were such provisions a valid exercise of regulatory 
authority?
    b. To the extent that provisions in VBA Manual M21-1 extant in 1964 
created a valid limitation on the grant of service connection for 
retinitis pigmentosa, did such a limitation bar service connection for 
the in-service aggravation of preexisting retinitis pigmentosa?
    c. If there was no previous bar to the award of service connection 
for retinitis pigmentosa, what statutory and regulatory provisions are 
for consideration in determining the effective date for the award of 
service connection for retinitis pigmentosa in the case giving rise to 
this opinion request?
    d. If the award of service connection for retinitis pigmentosa was 
barred at the time of a claimant's application for benefits, does the 
application of 38 U.S.C. Sec. 5110(g) and 38 CFR Sec. 3.114(a) permit 
assignment of an effective date based on the effective date of Op. G.C. 
1-85 (reissued as VAOPGCPREC 82-90); Op. G.C. 8-88 (reissued as 
VAOPGCPREC 67-90) or a 1986 revision to VBA Manual M21-1?

Held

    a. The provisions in paragraph 50.05 of chapter 50 of the Veterans 
Benefits Administration (VBA) (formerly Department of Veterans 
Benefits) Adjudication Procedures Manual M21-1 extant in 1964 did not 
purport to bar service connection for the in-service aggravation of 
preexisting retinitis pigmentosa.
    b. The effective date of the award of compensation for retinitis 
pigmentosa in the case giving rise to the opinion request is governed 
by the generally-applicable provisions of 38 U.S.C. Sec. 5110(a), 
unless the Board determines, based on its review of the record, that 
another provision in chapter 51 of title 38, United States Code, is 
applicable to that effective-date determination.
    c. Because the statutes and regulations existing at the time of the 
veteran's claim for benefits permitted an award of service connection 
for in-service aggravation of retinitis pigmentosa, subsequent 
Department of Veterans Affairs General Counsel opinions and changes to 
VBA Manual M21-1 cannot be considered ``liberalizing'' changes which 
created the right to such benefits. Accordingly, the effective dates of 
those documents do not govern the effective date of the veteran's award 
under 38 U.S.C. Sec. 5110(g) and 38 CFR Sec. 3.114(a).
    Effective Date: September 2, 1999.

VAOPGCPREC 12-99

Question Presented

    a. What is the definition of the phrase ``engaged in combat with 
the enemy,'' as used in 38 U.S.C. Sec. 1154(b)?
    b. What evidence is considered satisfactory proof that a veteran 
engaged in combat with the enemy?
    c. Besides recognized military citations, what other supportive 
evidence may be used to support a determination that a veteran engaged 
in combat with the enemy?
    d. Is a statement in service personnel records indicating that a 
veteran participated in certain military campaigns or operations--such 
as ``participated in operations against Viet Cong, Chu Lai, South 
Vietnam'' during a specified time period--sufficient in itself to 
establish engagement in combat, or is further evidence of actual or 
threatened exposure to hostile fire or some other similar type of event 
or threat required?
    e. How does the benefit-of-the-doubt rule under 38 U.S.C. 
Sec. 5107(b) apply in determining whether a veteran engaged in combat 
with the enemy for purposes of 38 U.S.C. Sec. 1154(b)?

Held

    a. The ordinary meaning of the phrase ``engaged in combat with the 
enemy,'' as used in 38 U.S.C. Sec. 1154(b), requires that a veteran 
have participated in events constituting an actual fight or encounter 
with a military foe or hostile unit or instrumentality. Nothing in the 
language or history of that statute or any Department of Veterans 
Affairs (VA) regulation suggests a more specific definition. The issue 
of whether any particular set of circumstances constitutes engagement 
in combat with the enemy for purposes of section 1154(b) must be 
resolved on a case-by-case basis. VA may issue regulations clarifying 
the types of activities that will be considered to fall within the 
scope of the term.
    b. The determination as to what evidence may be satisfactory proof 
that a veteran ``engaged in combat with the enemy'' necessarily depends 
on the facts of each case. Determining whether evidence establishes 
that a veteran engaged in combat with the enemy requires evaluation of 
all pertinent evidence in each case, and assessment of the credibility, 
probative value, and relative weight of the evidence.
    c. There is no statutory or regulatory limitation on the types of 
evidence that may be used in any case to support a finding that a 
veteran engaged in combat with the enemy. Accordingly, any evidence 
which is probative of that fact may be used by a veteran to support an 
assertion that the veteran engaged in combat with the enemy, and VA 
must consider any such evidence in connection with all other pertinent 
evidence of record.
    d. Whether a particular statement in service-department records 
indicating that the veteran participated in a particular ``operation'' 
or ``campaign'' is sufficient to establish that the veteran engaged in 
combat with the enemy depends upon the language and context of the 
records in each case. As a general matter, evidence of participation in 
an ``operation'' or ``campaign'' often would not, in itself, establish 
that a veteran engaged in combat, because those terms ordinarily may 
encompass both combat and non-combat activities. However, there may be 
circumstances in which the context of a particular service-department 
record indicates that reference to a particular operation or campaign 
reflects engagement in combat. Further, evidence of participation in a 
particular ``operation'' or ``campaign'' must be considered by VA in 
relation to other evidence of record, even if it does not, in itself, 
conclusively establish engagement in combat with the enemy.
    e. The benefit-of-the-doubt rule in 38 U.S.C. Sec. 5107(b) applies 
to determinations of whether a veteran engaged in combat with the enemy 
for purposes of 38 U.S.C. Sec. 1154(b) in the same manner as it applies 
to any other determination material to resolution of a claim for VA 
benefits. VA must evaluate the credibility and probative value of all 
pertinent evidence of record and determine whether there is an 
approximate balance of positive and negative evidence or whether the 
evidence preponderates either for or against a finding that the veteran 
engaged in combat. If there is an approximate balance of positive and 
negative evidence, the issue must be resolved in the veteran's favor.
    Effective Date: October 18, 1999.

[[Page 6258]]

VAOPGCPREC 13-99

Question Presented

    1. Does a liberalizing precedent opinion of General Counsel have 
the effect of overruling previous final decisions of the VA agency of 
jurisdiction?
    2. If the answer is affirmative, is VA obligated to award 
retroactive educational assistance benefits based on new evidence 
received in support of a claim finally denied before the liberalizing 
General Counsel opinion was issued?
    3. May VA pay benefits under the Montgomery GI Bill (MGIB) when no 
claim was filed by the veteran, but proof of enrollment in qualifying 
training is submitted by or on behalf of the veteran?

Held

    1. A precedent VA General Counsel opinion that invalidates or 
liberalizes an existing regulatory or statutory interpretation may have 
retroactive effect in regard to a claim still open on direct review, 
but can have no such effect on a finally adjudicated agency decision.
    2. In view of the preceding conclusion, it is unnecessary to 
address the second inquiry.
    3. Under the facts given, potentially the earliest indication of 
the veteran's intent to claim benefits for education he pursued in 1995 
would be the submission in 1999 of an enrollment certification form. 
Those facts, however, are insufficient to enable forming an opinion 
about whether submission of the enrollment form constituted an 
``informal claim'' within the meaning of 38 CFR Sec. 21.1029(d)(2) and, 
consequently, about the nature of VA's responsibility to act on that 
submission. It does seem clear that the veteran, thereafter, did not 
file a formal claim for his 1995 enrollment, as required by 38 U.S.C. 
Sec. 5101(a). Nevertheless, even if he had, we find the provisions of 
38 CFR Sec. 21.7131(a) would have precluded paying benefits based on 
that claim. That regulation provides that no educational assistance 
benefits may be paid for education/training received prior to a date 1 
year before a claim therefor is filed.
    Effective Date: October 28, 1999.

VAOPGCPREC 14-99

Issue

    Is an individual who successfully completes all requirements for 
eligibility for educational assistance benefits under the Montgomery GI 
Bill (MGIB) barred, under 38 U.S.C. Sec. 3011(c)(2), from receiving 
those benefits if he or she graduates from one of the U. S. military 
academies and receives a commission in the Armed Forces?

Conclusion

    As provided by 38 CFR Sec. 21.7042(f)(3), an individual who has met 
all the military service requirements to become entitled to MGIB 
benefits, as set forth in 38 U.S.C. Sec. 3011(a)(1)(A) or 
Sec. 3012(a)(1)(A), and who subsequently graduates from a military 
academy and is commissioned an officer in the Armed Forces is not 
barred by 38 U.S.C. Sec. 3011(c)(2) or Sec. 3012(d)(2) from receiving 
the vested MGIB benefits. However, if an individual is commissioned 
upon graduating from a military academy after December 31, 1976, and 
before completing the military service needed to establish MGIB 
entitlement, that individual is disqualified by section 3011(c)(2) and 
section 3012(d)(2) from MGIB eligibility.
    Effective Date: November 4, 1999.

VAOPGCPREC 15-99

Question Presented

    Are the provisions of 38 CFR Sec. 3.311(b)(3) and (4) valid insofar 
as they appear to preclude claimants from establishing that 
polycythemia vera was incurred as the result of exposure to ionizing 
radiation in service?

Held

    Paragraphs (b)(3) and (b)(4) of 38 CFR Sec. 3.311 are inconsistent 
with 38 U.S.C. Sec. 1113(b) to the extent that those regulatory 
provisions purport to preclude a claimant from establishing by evidence 
that a particular veteran incurred polycythemia vera as the result of 
exposure to ionizing radiation in service. The Department of Veterans 
Affairs (VA) may not rely upon 38 CFR Sec. 3.311(b)(3) and (4) as a 
basis for summarily denying any claim that polycythemia vera was 
incurred as a result of exposure to ionizing radiation in service. 
Rather, VA must give a claimant the opportunity to submit evidence to 
establish that a particular veteran incurred polycythemia vera as the 
result of exposure to ionizing radiation in service.
    Effective Date: November 16, 1999.

VAOPGCPREC 16-99

Questions Presented

    a. May a claimant who has been discharged from active duty with an 
entry level separation due to fraudulent enlistment and credited with 
zero net active service time by the Air Force be considered a veteran 
under 38 U.S.C. Sec. 101(2)?
    b. Should VA consider an Air Force enlistment which is terminated 
with an entry level separation to have been voided by the service 
department under 38 CFR Sec. 3.14?
    c. For purposes of 38 CFR Sec. 3.14(a), if the service department 
has voided an enlistment, is concealment of past illegal behavior a 
basis for considering the discharge to have been under dishonorable 
conditions?
    d. Does 38 CFR Sec. 3.12(k)(1) compel a finding that a claimant's 
military service terminated by an uncharacterized entry level 
separation was ``under conditions other than dishonorable,'' regardless 
of the circumstances surrounding the separation from service?

Held

    a. A claimant who served on active duty in the Air Force and was 
discharged from such service with an entry level separation due to 
fraudulent enlistment may qualify as a veteran under the provisions of 
38 U.S.C. )101(2), even though the claimant was not credited with any 
net active service time.
    b. Section 3.12(k)(1) of title 38, Code of Federal Regulations, 
requires a finding that an individual who was released from military 
service with an uncharacterized entry level separation was separated 
``under conditions other than dishonorable.'' In such a case, the 
provisions of 38 CFR Sec. 3.14(a) and(b) concerning enlistments voided 
by the service department are not controlling for purposes of 
determination of character of discharge.
    Effective Date: December 15, 1999.

    By Direction of the Secretary.
Leigh A. Bradley,
General Counsel.
[FR Doc. 00-2762 Filed 2-7-00; 8:45 am]
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