[Federal Register Volume 84, Number 224 (Wednesday, November 20, 2019)]
[Notices]
[Pages 64182-64183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25113]


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DEPARTMENT OF VETERANS AFFAIRS


Summary of a Precedent Opinion 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 a legal interpretation issued by the Office of the General 
Counsel (OGC) involving crediting certain veterans for their payment of 
the statutory funding fee. This interpretation is considered 
precedential by VA and will be followed by VA officials and employees 
in matters involving the same legal issues. This summary is published 
to provide the public with notice of VA's interpretations regarding the 
legal matters at issue.

FOR FURTHER INFORMATION CONTACT: Ms. Suzanne Hill, Law Librarian, 
Department of Veterans Affairs, Office of the General Counsel, 810 
Vermont Avenue NW, Washington, DC 20420, (202) 461-7624.

SUPPLEMENTARY INFORMATION: A VA regulation at 38 Code of Federal 
Regulation 2.6(e)(8) delegates to the VA General Counsel, the power to 
designate an opinion as precedential, and 38 CFR 14.507(b) specifies 
that precedential opinions 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 subsequent 
matters unless there has been a material change in a controlling 
statute or regulation or a superseding written legal opinion of the 
General Counsel or a judicial decision. 38 CFR 14.507(b). 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 matters. 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 2-2019

Questions Presented

    1. Does VA have legal authority to issue a refund of a funding fee 
collected under 38 United States Code 3729 when the requirements for 
waiver of the fee under section 3729(c) are met?
    2. If yes, to whom and under what circumstances?
    3. Is a refund determination subject to the Veterans Appeals 
Improvement and Modernization Act of 2017 (AMA)?

Held

    1. Yes. If VA determines that veterans impermissibly incurred 
funding fees due to overt error, systems limitations, or process 
limitations, VA should promptly credit such veterans for the fees they 
incurred. Additionally, VA must refund a funding fee if a later-in-time 
award of disability compensation is effective as of a date that is on 
or before the date the funding fee was collected.
    2. We believe a claim for remittance of a funding fee that was 
improperly assessed or that may now be refunded due to an intervening 
retroactive award of service-connected benefits is similar to the types 
of claims that the U.S. Court of Appeals for Veterans Claims has found 
not to be claims for benefits. Since a claim for a refund is not a 
claim for benefits, VA should promulgate rules clarifying VA's policy 
and procedures for processing claims for refunds. VA should continue to 
issue refunds whenever VA determines on its own, or if a veteran 
provides documentation, that a refund is due.
    3. The three-lane review scheme of the AMA applies to claims for 
``benefits''; VA is not required to make all three AMA review options 
available with respect to determinations not involving benefit claims. 
VA could choose to make higher-level review processes for supplemental 
claims or make similar processes available for decisions concerning 
requests for refund of the funding fee.

    Effective Date: June 25, 2019.
Richard J. Hipolit,
Principal Deputy General Counsel


[[Page 64183]]


    Signing Authority: The Secretary of Veterans Affairs, or designee, 
approved this document and authorized the undersigned to sign and 
submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs. Pamela J. Powers, the Chief of Staff of Veterans 
Affairs, approved this document on November 13, 2019, for publication.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.
[FR Doc. 2019-25113 Filed 11-19-19; 8:45 am]
 BILLING CODE 8320-01-P