[Federal Register Volume 69, Number 87 (Wednesday, May 5, 2004)]
[Notices]
[Pages 25174-25181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10131]


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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 Office of 
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. They 
are being published to provide the public, and, in particular, 
veterans' benefit claimants and their representatives, with notice of 
VA's interpretations regarding the legal matters at issue.

FOR FURTHER INFORMATION CONTACT: Susan P. Sokoll, Law Librarian, 
Department of Veterans Affairs (026H), 810 Vermont Ave., NW, 
Washington, DC 20420. (202) 273-6558.

SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(8) and 
14.507 authorize the Department's Office of General Counsel to issue 
written legal opinions having precedential effect in adjudications and 
appeals involving veterans' benefits under the 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, 
which must be, followed in future benefit matters and to

[[Page 25175]]

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 or by accessing them on the Internet at http://www1.va.gov/OGC/.

VAOPGCPREC 11-2001

Question Presented

    When a veteran is ineligible for burial in a national cemetery by 
operation of 38 U.S.C. 2411, may a headstone or marker or a memorial 
headstone or marker be provided under 38 U.S.C. 2306(a) or (b) for 
placement in a state, local, or private cemetery?

Held

    A veteran who cannot qualify for a headstone or marker under 38 
U.S.C. 2306(a), because he or she is not eligible for burial in a 
national cemetery due to 38 U.S.C. 2411, also cannot qualify for a 
memorial headstone or marker under U.S.C. 2306(b), in the event his or 
her remains are unavailable.

EFFECTIVE DATE: June 7, 2001.

VAOPGCPREC 12-2001

Question Presented

    What did the United States Court of Appeals for the Federal Circuit 
hold in Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 
(Fed. Cir. May 29, 2001)?

Held

    The only holdings in Roberson v. Principi, No. 00-7009, 2001 U.S. 
App. LEXIS 11008 (Fed. Cir. May 29, 2001) are the following:
    1. Once a veteran: (1) submits evidence of a medical disability; 
(2) makes a claim for the highest rating possible; and (3) submits 
evidence of unemployability, the requirement in 38 CFR 3.155(a) that an 
informal claim ``identify the benefit sought'' has been satisfied and 
VA must consider whether the veteran is entitled to total disability 
based upon individual unemployability (TDIU).
    2. A veteran is not required to submit proof that he or she is 100% 
unemployable in order to establish an inability to maintain a 
substantially gainful occupation, as required for a TDIU award pursuant 
to 38 CFR 3. 340(a).

EFFECTIVE DATE: July 6, 2001.

VAOPGCPREC 13-2001

Question Presented

    A. Whether the Due Process Clause of the Fifth Amendment to the 
United States Constitution prohibits the Department of Veterans Affairs 
(VA) from relying on field investigation reports in determining a 
nonresident alien claimant's entitlement to benefits without providing 
the claimant with the names of informers and field investigators and 
complete copies of relevant documents.
    B. Whether, consistent with fair process principles stated in 
Thurber v. Brown, 5 Vet. App. 119, 122-26 (1993), and Austin v. Brown, 
6 Vet. App. 547, 550-55 (1994), the Board of Veterans' Appeals (Board), 
in rendering a decision regarding entitlement to veterans benefits, may 
rely upon information provided by informers during the course of field 
examinations that is not available to a claimant.
    C. Whether a claimant's failure to appeal a VA decision regarding 
disclosure of information pursuant to the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, is of legal significance with regard to due 
process and fair process concerns in the claimant's benefit claim.
    D. Whether the Board may conduct a private inspection of evidence 
and release to a claimant exculpatory information that was redacted by 
VA in response to a request for release of information pursuant to the 
FOIA.

Held

    A. In order to decide whether disclosure of the names of informers 
and field investigators and complete copies of relevant documents is 
required to ensure fair process and compliance with established 
adjudication procedures (38 CFR 3.103(c) and (d)), the Board of 
Veterans' Appeals (Board) must consider whether a claimant's ability to 
rebut negative evidence or challenge the credibility of an informer's 
or investigator's statement would be impaired where a claimant has not 
had an opportunity to view the evidence or learn the name of an 
informer or investigator who has provided information that will be used 
in the adjudication of a benefit claim.
    B. The Department of Veterans Affairs (VA) may assert the 
informer's privilege and/or the law enforcement information privilege 
against disclosure to a claimant of the names of informers and field 
investigators and complete copies of relevant documents upon which the 
Board intends to rely in making its decision. Where such a privilege is 
asserted and the Board finds that the privilege would be applicable to 
the information that VA seeks to withhold, the Board must balance the 
public interest in protecting the flow of information for purposes of 
preventing fraud in the payment of veterans benefits against the 
claimant's right to rebut or challenge the credibility of an informer's 
statements or information provided in an investigative report in order 
to decide whether disclosure to a claimant of the name of an informer 
or field investigator and complete copies of relevant documents upon 
which the Board intends to rely in making its decision is necessary in 
a particular case. If the Board finds that the claimant's need for the 
name of an informer or field investigator outweighs the public's 
interest in protecting the name from disclosure, the Board should 
disclose the name to the claimant and may consider the information 
provided by the informer or field investigator in deciding the claim. 
If the Board finds that the public's interest in protecting the name of 
an informer or field investigator outweighs the claimant's need for the 
information, the Board should not disclose the name and may consider 
the information provided by the informer or field investigator in 
deciding the claim. If the Board finds that the claimant's need and the 
public's interest are of equal weight, it should decide the claim 
without considering information derived from sources not disclosed to 
the claimant. Under those circumstances, the Board would have to rely 
upon other evidence of record in deciding the claim.
    C. A claimant's failure to appeal a decision by VA regarding 
disclosure of public information pursuant to the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, is not controlling in assessing the adequacy 
of the procedures employed in VA's adjudication of a claim for 
benefits. However, there is a strong correlation between FOIA 
privileges relating to law enforcement and common law evidentiary 
privileges, and applicability of the FOIA exemptions may lend support 
to a claim of privilege by the Government.
    D. The Board may review, in private, evidence upon which it intends 
to rely in order to determine whether particular information should be 
redacted as privileged. However, at a minimum, the claimant should be 
informed as fully as possible concerning the Board's action and be 
given an opportunity to address the issue of the need for full 
disclosure.

EFFECTIVE DATE: August 31, 2001.

VAOPGCPREC 14-2001

Question Presented

    A. May the Board of Veterans' Appeals (Board) itself complete the 
development it ordered be completed by

[[Page 25176]]

an agency of original jurisdiction (AOJ) in a remanded case?
    B. May an AOJ to which the Board has remanded a case for 
development return the case to the Board for completion of the 
development by the Board?
    C. If the Board may recall a remanded case before the AOJ has 
completed the development ordered in the remand, must the AOJ 
readjudicate the case and issue a supplemental statement of the case 
(SSOC) as to any pertinent evidence it has received following the prior 
remand by the Board?

Held

    A. Section 19.9(a) of title 38, Code of Federal Regulations, 
currently requires the Board of Veterans' Appeals (Board) to remand a 
case to the agency of original jurisdiction (AOJ) if the Board 
determines that additional evidence, clarification of the evidence, or 
correction of a procedural defect is essential for a proper appellate 
decision. Provided that Sec.  19.9(a) is amended to permit the Board 
either to remand the case to the AOJ or to direct its own personnel to 
undertake the action necessary, the Board may itself complete the 
evidentiary development it ordered to be completed by the AOJ in a 
remanded case, subject to any regulatory requirements for vacating 
remand orders that may be established.
    B. Section 19.38 to title 38, Code of Federal Regulations, requires 
the AOJ to which the Board has remanded a case to complete the 
development ordered in the remand. The subordinate status of AOJs 
relative to the Board and the nature of the statutory and regulatory 
adjudication and appeal scheme require that AOJs abide by the Board's 
decision to remand a case for development. Accordingly, an AOJ may not 
itself return a case remanded to it by the Board before it has 
completed (or attempted to complete) the development ordered in the 
remand. However, the Board may vacate its previous remand order, recall 
the remanded case, and complete the necessary development itself. 
Before any Board remand order is vacated, however, 38 CFR 20.904 should 
be amended to expressly authorize this action and, preferably, to 
specify standards to guide the exercise of discretion by the Board. 
Under such a regulation, if the Board would rather itself conduct the 
development of a case that it has already remanded to an AOJ, it could 
vacate the remand order and call the case back to the Board, regardless 
of whether the AOJ has completed the ordered development.
    C. Section 19.31 of title 38, Code of Federal Regulations, 
generally requires the AOJ to issue a supplemental statement of the 
case (SSOC) following development pursuant to a remand by the Board 
unless the Board specifies that a SSOC is not required. Provided that 
Sec.  19.31 is amended so as not to require a SSOC if pertinent 
evidence is developed pursuant to a Board remand in a case that is 
recalled by the Board, the AOJ need not readjudicate the case or issue 
a SSOC as to any such evidence. In addition, 38 CFR 20.903 should be 
amended to assure that the appellant is given adequate notice and an 
opportunity to respond if the Board intends to rely on additional 
evidence developed by the AOJ in a claim remanded and then recalled by 
the Board.
    Caution: However, see Disabled American Veterans v. Secretary of 
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), which invalidated VA 
regulations permitting the Board of Veterans' Appeals to consider 
evidence that was not already considered by the agency of original 
jurisdiction, without obtaining the appellant's waiver of the right to 
initial consideration by the agency of original jurisdiction.

EFFECTIVE DATE: December 14, 2001.

VAOPGCPREC 1-2002

Question Presented

    May an individual receive concurrent Chapter 35 Survivors' and 
Dependents' Educational Assistance program benefits when both parents 
are permanently and totally (P&T) disabled due to a service-connected 
condition?

Held

    Chapter 35 educational assistance allowance may not be paid 
concurrently to a child by reason of the P&T service-connected 
disability of more than one parent.

EFFECTIVE DATE: January 25, 2002.

VAOPGCPREC 2-2002

Question Presented:

    Does 38 U.S.C. 5301(a) prohibit the Department of Veterans Affairs 
(VA) from deducting from benefit payments, at the direction of the 
beneficiary, dental-insurance premiums to be paid to a private insurer 
as part of the Civilian Health and Medical Program of VA (CHAMPVA)?

Held

    Section 5301(a) of title 38, United States Code, prohibits the 
assignment of payments of Department of Veterans Affairs (VA) benefits 
due or to become due, except to the extent specifically authorized by 
law. In the absence of a specific statutory exception, VA may not 
deduct from VA benefits, at the direction of the beneficiary, premiums 
charged for dental insurance provided by a private insurer through a 
contract with the Department of Defense.

EFFECTIVE DATE: March 5, 2002.

VAOPGCPREC 3-2002

Question Presented

    Can a Committee on Waivers and Compromises continue to consider a 
veteran's request for waiver of indebtedness if the veteran dies while 
the waiver request is pending?

Held

    A Committee on Waivers and Compromises can continue consideration 
of a request for waiver of indebtedness brought by a veteran-debtor 
notwithstanding the death of the veteran-debtor while the waiver 
proceeding is pending.

EFFECTIVE DATE: March 7, 2002.

VAOPGCPREC 4-2002

Question Presented

    Whether a former member of the Army Reserve who received two 
anthrax inoculations during inactive duty training and who alleges 
suffering from chronic fatigue and chronic Lyme-like disease as a 
result of these inoculations may be considered to have been disabled by 
an injury in determining whether the member incurred disability due to 
active service.

Held

    If evidence establishes that an individual suffers from a disabling 
condition as a result of administration of an anthrax vaccination 
during inactive duty training, the individual may be considered 
disabled by an ``injury'' incurred during such training as the term is 
used in 38 U.S.C. 101 (24), which defines ``active military, naval, or 
air service'' to include any period of inactive duty training during 
which the individual was disabled or died from an injury incurred or 
aggravated in line of duty. Consequently, such an individual may be 
found to have incurred disability in active military, naval, or air 
service for purposes of disability compensation under 38 U.S.C. 1110 or 
1131.

EFFECTIVE DATE: May 14, 2002.

VAOPGCPREC 5-2002

Question Presented

    Whether all regulations found in Part 4 of title 38, Code of 
Federal Regulations, are exempt from judicial review under 38 U.S.C. 
502 or 7252(c).

[[Page 25177]]

Held

    Placement of a regulation in Part 3 or Part 4 of the CFR is not 
determinative of its susceptibility to judicial review. Whether a 
section in Part 4 of the CFR is considered part of the ``schedule of 
ratings'' must be assessed on a case-by-case basis. Generally, the 
prohibition on judicial review, under 38 U.S.C. 502 or 7252(c), of the 
schedule of ratings or disabilities refers only to the provisions that 
prescribe the average impairments of earning capacities, divided into 
ten grades of disability upon which payments of compensation are based, 
adopted and adjusted under 38 U.S.C. 1155.

EFFECTIVE DATE: May 17, 2002.

VAOPGCPREC 6-2002

Question Presented

    A. May the Department of Veterans Affairs (VA) sever service 
connection of a disability erroneously and recently granted but with an 
effective date more than ten years earlier than the date of the 
decision granting service connection?
    B. If such a grant of service connection is protected from 
severance, must VA retroactively award compensation for that 
disability, if otherwise in order?

Held

    A. Section 1159 of title 38, United States Code, and its 
implementing regulation, 38 CFR 3.957, protect a grant of service 
connection (unless the grant was based on fraud or military records 
clearly show that the person concerned did not have the requisite 
service or character of discharge) that has been in effect for ten 
years or longer, as computed from the effective date of the 
establishment of service connection. Those provisions protect even 
service connection erroneously and recently granted, but with an 
effective date more than ten years before the date of the decision 
establishing service connection. The Department of Veterans Affairs 
(VA) may not sever such a grant of service connection (in the absence 
of fraud or lack of requisite service or character of discharge).
    B. Sections 1110 and 1131 of title 38, United States Code, direct 
the payment of compensation in accordance with the provisions of 
chapter 11, title 38, United States Code, to a veteran with the 
requisite service who is disabled by a service-connected disability, 
unless the disability is a result of the veteran's own willful 
misconduct or abuse of alcohol or drugs. In the absence of the 
veteran's own willful misconduct or abuse of alcohol or drugs, VA must 
pay, in accordance with the provisions of chapter 11, compensation 
otherwise in order for a disability that was erroneously service 
connected, where service connection is protected from severance.

EFFECTIVE DATE: July 11, 2002.

VAOPGCPREC 7-2002

Question Presented

    A. When the benefits of a veteran's surviving spouse are terminated 
pursuant to 38 U.S.C. 5313B because the surviving spouse is a fugitive 
felon, may benefits be paid to the surviving spouse's dependent 
children?
    B. When the benefits of a veteran's child are terminated pursuant 
to 38 U.S.C. 5313B because the child is a fugitive felon, and there are 
other children of the veteran in receipt of benefits, how are the other 
children's benefits affected?

Held

    A. If a surviving spouse of a veteran becomes a fugitive felon and 
consequently loses eligibility for dependency and indemnity 
compensation (DIC) or improved death pension benefits by operation of 
38 U.S.C. 5313B, additional benefits payable to the surviving spouse 
for children of the veteran would cease. Statutes governing DIC, 38 
U.S.C. 1313(a), and improved death pension, 38 U.S.C. 1542, provide 
independent eligibility for a veteran's children where there is no 
surviving spouse eligible for benefits. Thus, the children may receive 
benefits in their own right.
    B. If a veteran's child in receipt of improved death pension 
benefits loses eligibility for those benefits by operation of 38 U.S.C. 
5313B upon becoming a fugitive felon, the improved pension benefits 
payable to other children of the veteran would not be affected. 
Similarly, in the case of DIC, as long as the child who loses 
eligibility under 38 U.S.C. 5313B continues to meet the definition of 
child for title 38 purposes, the shares of other children receiving DIC 
will not increase.

EFFECTIVE DATE: December 2, 2002.

VAOPGCPREC 1-2003

Question Presented

    A. What effect does the decision of the United States Court of 
Appeals for the Federal Circuit in Disabled American Veterans v. 
Secretary of Veterans Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. 
Cir. May 1, 2003) (DAV decision), have on the authority of the Board of 
Veterans' Appeals (Board) to develop evidence with respect to cases 
pending before the Board on appeal?
    B. May the Board adjudicate claims where new evidence has been 
obtained if the appellant waives initial consideration of the new 
evidence by first-tier adjudicators in the Veterans Benefits 
Administration (VBA)?
    C. What effect does the DAV decision have on the Board's authority 
to send claimants the notice required by 38 U.S.C. 5103(a) in cases 
pending before the Board on appeal?
    D. Is the Board required to identify and readjudicate any claims 
decided before May 1, 2003 (the date of the DAV decision) in which the 
Board applied the regulatory provisions that the Federal Circuit held 
invalid in the DAV decision?

Held

    A. The decision of the United States Court of Appeals for the 
Federal Circuit in Disabled American Veterans v. Secretary of Veterans 
Affairs, Case Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003) (DAV 
decision), does not prohibit the Board of Veterans' Appeals (Board) 
from developing evidence in a case on appeal before the Board, provided 
that the Board does not adjudicate the claim based on any new evidence 
it obtains unless the claimant waives initial consideration of such 
evidence by first-tier adjudicators in the Veterans Benefits 
Administration (VBA). Existing statutes and regulations may reasonably 
be construed to authorize the Board to develop evidence in such cases. 
If considered necessary or appropriate to clarify the Board's 
authority, the Secretary of Veterans Affairs may expressly delegate to 
the Board the authority to develop evidence in accordance with 38 
U.S.C. 5103A.
    B. The Board may adjudicate claims where new evidence has been 
obtained if the appellant waives initial consideration of the new 
evidence by VBA.
    C. The DAV decision does not prohibit the Board from issuing the 
notice required by 38 U.S.C. 5103(a) in a case on appeal before the 
Board. Existing statutes and regulations may reasonably be construed to 
authorize the Board to provide the required notice in such cases. If 
considered necessary or appropriate to clarify the Board's authority, 
the Secretary of Veterans Affairs may expressly delegate to the Board 
the authority to issue notice required by 38 U.S.C. 5103(a). The 
content of any notice issued by the Board must adhere to the 
requirements of 38 U.S.C. 5103 as described by the Federal Circuit in 
the DAV decision.

[[Page 25178]]

    D. The Board is not required to identify and readjudicate any 
claims decided by the Board before May 1, 2003 (the date of the DAV 
decision) in which the Board applied the regulatory provisions that the 
Federal Circuit held invalid in the DAV decision. However, if a claim 
was finally denied by the Board and the claimant subsequently submits 
requested information or evidence within one year after the date of the 
request, the Department of Veterans Affairs must review the claim.

EFFECTIVE DATE: May 21, 2003.

VAOPGCPREC 2-2003

Question Presented

    Whether Diagnostic Code (DC) 6260, as in effect prior to June 10, 
1999, and as amended as of that date, authorizes a single 10% 
disability rating for tinnitus, regardless of whether tinnitus is 
perceived as unilateral, bilateral, or in the head, or whether separate 
disability ratings for tinnitus in each ear may be assigned under that 
or any other diagnostic code?

Held

    Diagnostic Code 6260 (currently codified at 38 CFR 4.87), as in 
effect prior to June 10, 1999, and as amended as of that date, 
authorized a single 10% disability rating for tinnitus, regardless of 
whether tinnitus is perceived as unilateral, bilateral, or in the head. 
Separate ratings for tinnitus for each ear may not be assigned under DC 
6260 or any other diagnostic code.

EFFECTIVE DATE: May 22, 2003.

VAOPGCPREC 3-2003

Question Presented

    A. Does 38 CFR 3.304(b), which provides that the presumption of 
sound condition may be rebutted by clear and unmistakable evidence that 
an injury or disease existed prior to service, conflict with 38 U.S.C. 
1111, which provides that the presumption of sound condition may be 
rebutted by clear and unmistakable evidence that an injury or disease 
existed prior to service ``and was not aggravated by such service'?
    B. Does 38 CFR 3.306(b), which provides that the presumption of 
aggravation under 38 U.S.C. 1153 does not apply when a preexisting 
disability did not increase in severity during service, conflict with 
38 U.S.C. 1111?

Held

    A. To rebut the presumption of sound condition under 38 U.S.C. 
1111, the Department of Veterans Affairs (VA) must show by clear and 
unmistakable evidence both that the disease or injury existed prior to 
service and that the disease or injury was not aggravated by service. 
The claimant is not required to show that the disease or injury 
increased in severity during service before VA's duty under the second 
prong of this rebuttal standard attaches. The provisions of 38 CFR 
3.304(b) are inconsistent with 38 U.S.C. 1111 insofar as Sec.  3.304(b) 
states that the presumption of sound condition may be rebutted solely 
by clear and unmistakable evidence that a disease or injury existed 
prior to service. Section 3.304(b) is therefore invalid and should not 
be followed.
    B. The provisions of 38 CFR 3.306(b) providing that aggravation may 
not be conceded unless the preexisting condition increased in severity 
during service, are not inconsistent with 38 U.S.C. 1111. Section 
3.306(b) properly implements 38 U.S.C. 1153, which provides that a 
preexisting injury or disease will be presumed to have been aggravated 
in service in cases where there was an increase in disability during 
service. The requirement of an increase in disability in 38 CFR 
3.306(b) applies only to determinations concerning the presumption of 
aggravation under 38 U.S.C. 1153 and does not apply to determinations 
concerning the presumption of sound condition under 38 U.S.C. 1111.

EFFECTIVE DATE: July 16, 2003.

VAOPGCPREC 4-2003

Question Presented

    A. Who has the authority to consider whether collection of a debt 
should be suspended or terminated?
    B. Is a denial of suspension or termination of collection activity 
under 31 U.S.C. Sec.  3711 reviewable by the Board of Veterans' Appeals 
(Board)?
    C. If regional-office rating personnel and/or the Board have the 
authority to consider whether collection of a debt should be suspended 
or terminated, must the Department of Veterans Affairs (VA) consider 
this issue in all cases where a debtor has requested a waiver of 
overpayment?
    D. If regional-office rating personnel and/or the Board have the 
authority to consider whether collection of a debt should be suspended 
or terminated, then what is the relationship between the criteria for 
suspending or terminating collection activity and waiving recovery of 
an overpayment?

Held

    A. Various Department of Veterans Affairs (VA) and non-VA personnel 
have the authority to suspend or terminate collection action under the 
Federal Claims Collection Act (FCCA) on debts arising out of VA 
activities, depending upon the amount, nature, and status of the debt. 
The Department of Justice may suspend or terminate collection on debts 
of more than $100,000. Designated officials in VA's Office of the 
General Counsel may suspend or terminate collection on debts of less 
that $100,000 involving liability for negligent damage to or loss of 
Government property or for the cost of hospital, medical, surgical, or 
dental care of a person. The Chief of the Fiscal Activity at individual 
Veterans Benefits Administration or Veterans Health Administration 
stations and the Director of VA's Debt Management Center may suspend or 
terminate collection on debts of up to $100,000 arising out of the 
operations of their offices. The Secretary of the Treasury, a Federal 
debt-collection center, a private collection contractor, or the 
Department of Justice may suspend or terminate collection on debts that 
have been referred to them for servicing or litigation under the FCCA.
    B. The Board of Veterans' Appeals does not have jurisdiction to 
review discretionary decisions by authorized VA and non-VA officials 
concerning suspension or termination of collection of a benefit debt.

EFFECTIVE DATE: August 28, 2003.

VAOPGCPREC 5-2003

Question Presented

    May the language of 38 CFR 3.157(b)(1) that provides that the date 
of admission to a Department of Veterans Affairs (VA) or uniformed 
services hospital will be accepted as the date of receipt of a claim 
for an increased disability rating be construed as including the date 
of admission to a private hospital pursuant to the prior authorization 
of a contractor that administers the Department of Defense's (DoD) 
TRICARE program?

Held

    The provision of 38 CFR 3.157(b)(1) stating that the date of 
admission to a ``uniformed services hospital will be accepted as the 
date of receipt of a claim'' for increased benefits is applicable to 
veterans hospitalized in private facilities at DoD expense under DoD's 
TRICARE program.

EFFECTIVE DATE: September 15, 2003.

VAOPGCPREC 6-2003

Question Presented

    Under 38 U.S.C. 1103, 1110, and 1131, may service connection be 
established for a tobacco-related disability or death on the basis that 
the disability or death was secondary to a

[[Page 25179]]

service-connected mental disability that caused the veteran to use 
tobacco products?

Held

    Neither 38 U.S.C. 1103(a), which prohibits service connection of a 
disability or death on the basis that it resulted from injury or 
disease attributable to the use of tobacco products by the veteran 
during service, nor VA's implementing regulations at 38 CFR 3.300, bar 
a finding of secondary service connection for a disability related to 
the veteran's use of tobacco products after the veteran's service, 
where that disability is proximately due to a service-connected 
disability that is not service connected on the basis of being 
attributable to the veteran's use of tobacco products during service. 
The questions that adjudicators must resolve with regard to a claim for 
service connection for a tobacco-related disability alleged to be 
secondary to a disability not service connected on the basis of being 
attributable to the veteran's use of tobacco products during service 
are: (1) Whether the service-connected disability caused the veteran to 
use tobacco products after service; (2) if so, whether the use of 
tobacco products as a result of the service-connected disability was a 
substantial factor in causing a secondary disability; and (3) whether 
the secondary disability would not have occurred but for the use of 
tobacco products caused by the service-connected disability. If these 
questions are answered in the affirmative, the secondary disability may 
be service connected. Further, the secondary disability may be 
considered as a possible basis for service connection of the veteran's 
death, applying the rules generally applicable in determining 
eligibility for dependency and indemnity compensation.

EFFECTIVE DATE: October 28, 2003.

VAOPGCPREC 7-2003

Question Presented

    A. What effect does the decision of the United States Court of 
Appeals for the Federal Circuit in Kuzma v. Principi, 341 F.3d 1327 
(Fed. Cir. 2003), have upon the rule set forth by the United States 
Court of Appeals for Veterans Claims (CAVC) in Karnas v. Derwinski, 1 
Vet. App. 308 (1991), concerning the applicability of changes in law?
    B. Do the standards governing the retroactive application of 
statutes and regulations differ from those governing the retroactive 
application of rules announced in judicial decisions?
    C. How should the Department of Veterans Affairs (VA) determine 
whether applying a new statute or regulation to a pending claim would 
have a prohibited retroactive effect?
    D. In determining the applicability of a change in law, is there a 
difference between claims that were pending before VA when the change 
occurred and claims that had already been decided by the Board of 
Veterans' Appeals (Board) and were pending on direct appeal to a court 
when that change occurred?
    E. If certain provisions of the Veterans Claims Assistance Act of 
2000 (VCAA) were held to be inapplicable to claims filed before 
November 9, 2000 (the date the VCAA was enacted) and still pending 
before VA on that date, would VA have authority, from sources other 
than the VCAA, to continue applying its regulations implementing the 
VCAA to claims filed before that date?
    F. Does VAOPGCPREC 11-2000 remain viable in light of the holdings 
in Kuzma, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), and 
Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002)?

Held

    A. In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United 
States Court of Appeals for the Federal Circuit overruled Karnas v. 
Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the 
precedents of the Supreme Court and the Federal Circuit. Karnas is 
inconsistent with Supreme Court and Federal Circuit precedent insofar 
as Karnas provides that, when a statute or regulation changes while a 
claim is pending before the Department of Veterans Affairs (VA) or a 
court, whichever version of the statute or regulation is most favorable 
to the claimant will govern unless the statute or regulation clearly 
specifies otherwise. Accordingly, that rule adopted in Karnas no longer 
applies in determining whether a new statute or regulation applies to a 
pending claim. Pursuant to Supreme Court and Federal Circuit precedent, 
when a new statute is enacted or a new regulation is issued while a 
claim is pending before VA, VA must first determine whether the statute 
or regulation identifies the types of claims to which it applies. If 
the statute or regulation is silent, VA must determine whether applying 
the new provision to claims that were pending when it took effect would 
produce genuinely retroactive effects. If applying the new provision 
would produce such retroactive effects, VA ordinarily should not apply 
the new provision to the claim. If applying the new provision would not 
produce retroactive effects, VA ordinarily must apply the new 
provision.
    B. Different standards govern the retroactive application of 
statutes and regulations and the retroactive application of rules 
announced in judicial decisions. As a general matter, rules announced 
in judicial decisions apply retroactively to all cases still open on 
direct review when the new rule is announced. Statutes and regulations, 
in contrast, are presumed not to apply in any manner that would produce 
genuinely retroactive effects, unless the statute or regulation itself 
provides for such retroactivity.
    C. There is no simple test for determining whether applying a new 
statute or regulation to a particular claim would produce retroactive 
effects. Generally, a statute or regulation would have a disfavored 
retroactive effect if it attaches new legal consequences to events 
completed before its enactment or extinguishes rights that previously 
accrued. Provisions affecting only entitlement to prospective benefits 
ordinarily do not produce any retroactive effects when applied to 
claims that were pending when the new provision took effect. Changes in 
procedural rules often may be applied to pending cases without raising 
concerns about retroactivity, but may have a prohibited retroactive 
effect if applied to cases in which the procedural events governed by 
the new rule had previously been completed, such as cases pending on 
appeal to a court when a new rule of agency procedure is issued. In 
considering whether a new statute or regulation would produce 
retroactive effects, VA should consider whether the provision is 
substantive or procedural, whether it would impose new duties with 
respect to completed transactions or would only affect prospective 
relief, whether it would attach new legal consequences to events 
completed before its enactment or extinguish rights that previously 
accrued, and whether application of the new provision would be 
consistent with notions of fair notice and reasonable reliance. VA 
should consider the effects on the Government as well as the claimant 
and should consider the procedural posture of the pending claim in 
relation to the foregoing factors. Most statutes and regulations 
liberalizing the criteria for entitlement to a benefit may be applied 
to pending claims because they would affect only prospective relief. 
Statutes or regulations restricting the right to a benefit may have 
disfavored retroactive effects to the extent their application to a 
pending claim would extinguish the claimant's

[[Page 25180]]

right to benefits for periods before the statute or regulation took 
effect.
    D. In determining whether application of a new statute or 
regulation would produce retroactive effects, there may be a difference 
in some circumstances between cases that were pending in different 
procedural postures on the date the new provision took effect. New 
provisions affecting procedural matters in many cases would not produce 
retroactive effects as applied to claims that were pending at a 
procedural stage to which the new provision applies, but may produce 
disfavored retroactive effects if applied to pending claims in which 
the stage of proceedings to which the new provision applies has already 
been completed. However, the procedural posture of the claim is not the 
sole determinative factor in all cases. Even among cases in the same 
procedural posture, distinctions may be drawn based on the 
circumstances of the particular case and considerations of fairness to 
the specific parties.
    E. Even if applying the amendments made by section 3(a) of the VCAA 
to claims that were pending before VA on November 9, 2000, were 
construed to have retroactive effects on VA, VA would have the 
authority to apply 38 CFR 3.159, the regulation implementing these 
amendments, to such claims. VA has the authority to provide for the 
retroactive application of its procedural regulations where such 
regulations are beneficial to claimants and not inconsistent with the 
governing statutes and VA has expressly provided for their retroactive 
application. The provisions of Sec.  3.159 are beneficial to claimants 
and not inconsistent with the VCAA or any other statute, and VA has 
expressly provided that they will apply to claims that were pending 
before VA on November 9, 2000. Consequently, VA has authority to apply 
its regulations implementing the VCAA to claims filed before the date 
of enactment of the VCAA and still pending before VA as of that date.
    F. In VAOPGCPREC 11-2000, we concluded that all of the VCAA's 
provisions apply to claims that were filed before November 9, 2000, but 
had not been finally decided as of the date. Because VA's August 2001 
final-rule notice amending 38 CFR 3.159 expressly and validly provided 
that VA's regulations implementing the VCAA will apply to all claims 
that were pending before VA as of November 9, 2000, any further 
reliance on VAOPGCPREC 11-2000 is unnecessary. We hereby withdraw 
VAOPGCPREC 11-2000.

EFFECTIVE DATE: November 19, 2003.

VAOPGCPREC 8-2003

Question Presented

    Must the Department of Veterans Affairs (VA) notify a claimant of 
the information and evidence necessary to substantiate an issue first 
raised in a notice of disagreement (NOD) submitted in response to VA's 
notice of its decision on a claim for which VA has already notified the 
claimant of the information and evidence necessary to substantiate the 
claim?

Held

    Under 38 U.S.C. 5103(a), the Department of Veterans Affairs (VA), 
upon receipt of a complete or substantially complete application, must 
notify the claimant of the information and evidence necessary to 
substantiate the claim for benefits. Under 38 U.S.C. 7105(d), upon 
receipt of a notice of disagreement in response to a decision on a 
claim, the ``agency of original jurisdiction'' must take development or 
review action it deems proper under applicable regulations and issue a 
statement of the case if the action does not resolve the disagreement 
either by grant of the benefits sought or withdrawal of the notice of 
disagreement. If, in response to notice of its decision on a claim for 
which VA has already given the section 5103(a) notice, VA receives a 
notice of disagreement that raises a new issue, section 7105(d) 
requires VA to take proper action and issue a statement of the case if 
the disagreement is not resolved, but section 5103(a) does not require 
VA to provide notice of the information and evidence necessary to 
substantiate the newly raised issue.

EFFECTIVE DATE: December 22, 2003.

VAOPGCPREC 9-2003

Question Presented

    What is the scope of the protection provided by 38 U.S.C. 2305 in 
claims for burial benefits under 38 U.S.C. chapter 23?

Held

    Section 2305 of title 38, United States Code, preserves rights 
individuals had under laws in effect on December 31, 1957, based on 
their status as members of particular units or organizations that fell 
within the scope of the laws defining classes of individuals 
potentially eligible for burial benefits under chapter 23 of title 38. 
Veterans with wartime service prior to January 1, 1958, are not 
exempted by section 2305 from the amendments to eligibility criteria 
for nonservice-connected burial and funeral allowance currently 
codified in 38 U.S.C. 2302(a) made by the Omnibus Budget Reconciliation 
Act of 1981, Pub. L. 97-35, which eliminated wartime service as a basis 
for eligibility. Burial benefits provided by operation of 38 U.S.C. 
2305 are to be paid based on the rates in effect on the date of the 
veteran's death.

EFFECTIVE DATE: December 23, 2003.

VAOPGCPREC 1-2004

Question Presented

    Does the decision of the United States Court of Appeals for 
Veterans Claims (CAVC) in Pelegrini v. Principi, No. 01-944, 2004 U.S. 
App. Vet. Claims LEXIS 11 (Jan. 13, 2004), require that notice provided 
under 38 U.S.C. 5103(a) contain a request that the claimant provide the 
Department of Veterans Affairs (VA) with any evidence in his or her 
possession that pertains to the claim?

Held

    Under 38 U.S.C. 5103(a) and 38 CFR 3.159(b)(1), the Department of 
Veterans Affairs (VA), upon receipt of a complete or substantially 
complete application, must notify the claimant of the information and 
evidence necessary to substantiate the claim for benefits and must 
indicate which portion of that information and evidence the claimant 
must provide and which portion VA will attempt to obtain for the 
claimant. In Pelegrini v. Principi, No. 01-944, 2004 U.S. App. Vet. 
Claims LEXIS 11 (Jan. 13, 2004), the United States Court of Appeals for 
Veterans Claims (CAVC) stated that section 3.159(b)(1), explicitly, and 
section 5103(a), implicitly, require that VA request that the claimant 
provide any evidence in his or her possession that pertains to the 
claim. The CAVC's statement that sections 5103(a) and 3.159(b)(1) 
require VA to include such a request as part of the notice provided to 
a claimant under those provisions is obiter dictum and is not binding 
on VA. Further, section 5103(a) does not require VA to seek evidence 
from a claimant other than that identified by VA as necessary to 
substantiate the claim.

EFFECTIVE DATE: February 24, 2004.

VAOPGCPREC 2-2004

Question Presented

    Whether, pursuant to 38 U.S.C. 5103(a) the Department of Veterans 
Affairs (VA) is required to provide notice of the information and 
evidence necessary to substantiate a claim for separate ratings for 
service-connected tinnitus in each ear.

[[Page 25181]]

Held

    Under 38 U.S.C. 5103(a), the Department of Veterans Affairs is not 
required to provide notice of the information and evidence necessary to 
substantiate a claim for separate disability ratings for each ear for 
bilateral service-connected tinnitus because there is no information or 
evidence that could substantiate the claim, as entitlement to separate 
ratings is barred by current Diagnostic Code (DC) 6260 and by the 
previous versions of DC 6260 as interpreted by a precedent opinion of 
the General Counsel that is binding on all Department officials and 
employees.

EFFECTIVE DATE: March 9, 2004.

VAOPGCPREC 3-2004

Question Presented

    Does a veteran's entitlement under 38 U.S.C. 1151(a) to 
compensation for a disability ``as if'' service connected satisfy the 
requirement of 38 U.S.C. 3901(1)(A) that, to be eligible for automobile 
benefits under chapter 39, a claimant must be entitled to compensation 
under chapter 11 for a disability that ``is the result of an injury 
incurred or disease contracted in or aggravated by active military, 
naval, or air service''?

Held

    Section 1151(a) of title 38, United States Code, authorizes 
compensation under chapter 11 of title 38 for additional disability 
caused by Department of Veterans Affairs (VA) hospital care, medical or 
surgical treatment, or examination, or proximately caused by VA's 
provision of training and rehabilitation services or by participation 
in a compensated work therapy program, ``as if'' the disability were 
service connected. A veteran's entitlement under section 1151(a) to 
compensation for a disability ``as if'' service connected does not 
satisfy 38 U.S.C. 3901(1)(A)'s requirement, for eligibility for 
automobile benefits under chapter 39 of title 38, United States Code, 
of entitlement to compensation under chapter 11 for a disability that 
``is the result of an injury incurred or disease contracted in or 
aggravated by active military, naval, or air service.''

EFFECTIVE DATE: March 9, 2004.

    Dated: April 28, 2004.

    By Direction of the Secretary.
Tim S. McClain,
General Counsel.
[FR Doc. 04-10131 Filed 5-4-04; 8:45 am]
BILLING CODE 8320-01-P