[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Notices]
[Pages 7958-7959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3631]


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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 Office of General 
Counsel involving Veterans' benefits under laws administered by VA. 
This interpretation is considered precedential by VA and will be 
followed by VA officials and employees in future claim matters 
involving the same legal issues. The summary is published to provide 
the public, and, in particular, Veterans' benefits claimants and their 
representatives, with notice of VA's interpretation regarding the legal 
matter at issue.

FOR FURTHER INFORMATION CONTACT: Susan P. Sokoll, Law Librarian, 
Department of Veterans Affairs, 810 Vermont Avenue, NW. (026H), 
Washington, DC 20420, (202) 461-7623.

SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(8) delegates 
to the General Counsel the power to designate an opinion as 
precedential and 38 CFR 14.507(b) specifies that precedential opinions 
involving Veterans' benefits are binding on VA officials and employees 
in subsequent matters involving the legal issue decided in the 
precedent opinion. The interpretation of the General Counsel on legal 
matters, contained in such opinions, is conclusive as to all VA 
officials and employees not only in the matter at issue but also in 
future adjudications and appeals involving the same legal issues, 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' 
benefits 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 the opinions on the internet at http://www.va.gov/ogc/precedentopinions.asp.

VAOPGCPREC 2-2008

    Opinion withdrawn and superseded by VAOPGCPREC 3-2008.

VAOPGCPREC 3-2008

Questions Presented

    1. Are the rehabilitation and vocational benefits described in 
section 1631(b)(1) of Public Law 110-181 to be provided by the Veterans 
Health Administration (VHA) under chapter 17 of title 38, United States 
Code, or by the Veterans Benefits Administration (VBA) under chapter 31 
of that title?
    2. Further, if section 1631(b)(1) relates to benefits under chapter 
31, clarification is requested of the following issues:
    (a) What is the mechanism for establishing eligibility and 
entitlement to rehabilitation and vocational services under section 
1631(b)(1)? For example, would a qualifying individual be required to 
provide documentation of a Physical Evaluation Board to VA?
    (b) What, if any, is VA's responsibility to develop potential 
eligibility/entitlement under Public Law No. 110-181 if a Veteran or 
servicemember with no VA service-connected disability rating or 
memorandum rating applies for chapter 31 benefits?
    (c) Are individuals qualifying under Public Law No. 110-181 
required to complete a VA Form 28-1900 or some other form of 
application before chapter 31 benefits can be provided by VA?
    (d) Are the current limitations on services to active-duty 
servicemembers applicable to individuals who are entitled to 
rehabilitation and vocational benefits under Public Law No. 110-181 
while they remain on active duty? For example, under current law 
active-duty servicemembers may not receive a subsistence allowance, a 
revolving fund advance, or a rehabilitation program consisting solely 
of independent living services under chapter 31.
    (e) We believe that certain actions and processes are essential to 
the provision of services under chapter 31. Is VA precluded from 
requiring those individuals qualifying under Public Law No. 110-181 to 
complete an initial evaluation to:
    (1) Verify the information/documentation that qualifies the 
individual?
    (2) Determine whether an employment handicap or serious employment 
handicap exists?
    (3) Determine the feasibility of achieving a vocational goal?
    (4) Complete any assessment and/or testing needed to begin 
rehabilitation planning?

Held

    1. The rehabilitation and vocational benefits described in section 
1631(b)(1) of Public Law 110-181 (hereafter referred to as ``section 
1631(b)(1)'') must be provided, respectively, by both the Veterans 
Health Administration (VHA) under chapter 17 of title 38, United States 
Code, and the Veterans Benefits Administration (VBA), through the VR&E 
Service, under chapter 31 of that title.
    2. With regard to the provision of benefits under chapter 31, 
addressed in questions 2 (a) through (e) of your request, please refer 
to paragraph 5 below. This opinion supersedes our opinion on this 
subject dated June 25, 2008.
    Effective Date: December 18, 2008.

VAOPGCPREC 1-2009

Question Presented

    a. If a Veteran's surviving spouse who was entitled to the 38 
U.S.C. 5310(b) benefit for the month of the Veteran's death dies before 
receiving the benefit, is VA required to pay to the estate of the 
deceased surviving spouse the amount of the section 5310(b) benefit the

[[Page 7959]]

surviving spouse would have received but for his or her death?
    b. If the answer to Question a. is no, if a surviving spouse 
entitled to the section 5310(b) benefit dies before receiving the 
benefit, is the benefit, aside from any portion of the benefit that is 
payable as accrued benefits under 38 U.S.C. 5121 pursuant to the terms 
of section 5310(b)(2), subject to the accrued benefits provisions of 
section 5121, in which case a non-spouse survivor would be required to 
file a claim for the section 5310(b) benefit, and, if so, to what 
extent is VA required to locate the persons identified in section 
5121(a)(2)?

Held

    a. Section 5310(b)(1) of title 38, United States Code, provides a 
benefit for the surviving spouse of a Veteran who dies while in receipt 
of disability compensation or pension, if the surviving spouse is not 
entitled to death benefits under chapter 11, 13, or 15 of title 38 for 
the month of the Veteran's death. If a Veteran's surviving spouse who 
was entitled to the section 5310(b)(1) benefit dies before receiving 
the benefit, VA is not required to pay to the deceased surviving 
spouse's estate the amount of the section 5310(b) benefit the surviving 
spouse would have received but for his or her death because entitlement 
to the benefit would terminate with the death of the surviving spouse.
    b. Section 5310(b)(2) provides in part that, if a check or other 
payment issued to, and in the name of, the deceased Veteran as a 
benefit payment under chapter 11 or 15 of title 38, United States Code, 
for the month in which death occurs is in an amount less than the 
amount of the benefit a surviving spouse is eligible to receive under 
section 5310(b)(1), ``the unpaid amount shall be treated in the same 
manner as an accrued benefit under section 5121 of [title 38].'' If a 
surviving spouse entitled to the section 5310(b)(1) benefit dies before 
receiving the benefit, the section 5310(b)(1) benefit, aside from any 
unpaid portion of the benefit that is payable as accrued benefits under 
section 5121 pursuant to the provision quoted above, is not subject to 
the accrued benefits provisions of section 5121 because the section 
5310(b)(1) benefit is a one-time payment for the Veteran's month of 
death and, therefore, cannot be considered ``periodic monetary 
benefits'' for purposes of section 5121.
    Effective Date: January 22, 2009.

VAOPGCPREC 2-2009

Question Presented

    Does the Consolidated Security, Disaster Assistance, and Continuing 
Appropriations Act, 2009, Public Law No. 110-329, Div. E, tit. II, 
Sec.  205, 122 Stat. 3574, 3709 (2008), which provides that Department 
of Veterans Affairs (VA) appropriations may not be used for 
``examination of any persons'' except certain groups, including 
``beneficiaries entitled to * * * examination under the laws providing 
such benefits to Veterans,'' preclude the use of VA appropriations to 
provide examinations to active duty service members enrolled in the 
Disability Evaluation System (DES) pilot program?

Held

    Department of Veterans Affairs appropriations may be used to 
provide an examination to an active duty service member enrolled in the 
Department of Defense (DoD) Disability Evaluation System pilot program 
following referral to a DoD Medical Evaluation Board because of a 
potentially unfitting condition and completion of VA Form 21-0819, VA/
DOD Joint Physical Evaluation Board Claim by the member.
    Effective Date: February 10, 2009.

    Dated: February 13, 2009.

    By Direction of the Secretary.
John H. Thompson,
Acting General Counsel.
 [FR Doc. E9-3631 Filed 2-19-09; 8:45 am]
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