[Federal Register Volume 85, Number 4 (Tuesday, January 7, 2020)]
[Notices]
[Pages 788-789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00027]


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DEPARTMENT OF VETERANS AFFAIRS


Summary of 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 Veterans' benefits under laws administered by 
VA. This interpretation is considered precedential by VA and will be 
followed by VA officials and employees in claim matters involving the 
same legal issue. This 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: Suzanne Hill, Law Librarian, Office of 
General Counsel, 810 Vermont Avenue NW, Washington, DC 20420, (202) 
461-7624.

SUPPLEMENTARY INFORMATION: A VA regulation 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 precedent 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 in all 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 or a judicial decision.
    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 3-2019

Questions Presented

    1. Who is eligible to file a claim as a ``survivor'' under the 
effective date provision of the Blue Water Navy Vietnam Veterans Act of 
2019 (``the BWN Act''), Public Law 116-23, to be codified at 38 U.S.C. 
1116A(c)?
    2. Does the BWN Act authorize the Department of Veterans Affairs 
(VA) to pay estates, as if they were eligible payees under the Final 
Stipulation and Order in Nehmer v. United States Veterans Admin., No. 
CV-86-6160 (N.D. Cal. 1991) (``the Nehmer stipulation'')?
    3. Are veterans or their survivors who were granted disability 
compensation or survivor benefits under Procopio v. Wilkie, 913 F.3d 
1371 (Fed. Cir. 2019), potentially eligible for earlier effective dates 
under the Nehmer stipulation or under the BWN Act?

Held

    1. As used in 38 U.S.C. 1116A(c), the term ``survivors'' refers to 
those relatives of veterans who are eligible for dependency and 
indemnity compensation (DIC) and/or accrued benefits under title 38, 
United States Code.
    2. The BWN Act does not authorize VA to pay benefits to estates of 
claimants. The BWN Act did not adopt or extend the Nehmer court rulings 
authorizing payments to estates of certain benefits payable under the 
Nehmer stipulation. No other provisions of title 38, United States 
Code, authorize VA to pay benefits under 38 U.S.C. 1116A to estates of 
claimants.
    3. The Nehmer stipulation operates to void a final decision on a 
veteran's or survivor's benefits claim only when the Secretary of 
Veterans Affairs establishes a new presumption of service connection 
pursuant to the Agent Orange Act of 1991, Public Law 102-4, codified at 
38 U.S.C. 1116(b). The Procopio decision does not establish a new 
presumption pursuant to the process described in section 1116(b) and 
accordingly does not provide authority for VA to void final decisions 
on

[[Page 789]]

benefits claims. A veteran or survivor who is granted benefits under 
the Procopio rule and whose claim for the same condition was previously 
denied on or after September 25, 1985, may be entitled to a retroactive 
award if he or she submits a claim for such award in accordance with 
the BWN Act.
    Effective Date: December 13, 2019.

William A. Hudson, Jr.,
Acting General Counsel, Department of Veterans Affairs.

Signing Authority

    The Secretary of Veterans Affairs 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on December 23, 2019, for publication.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.
[FR Doc. 2020-00027 Filed 1-6-20; 8:45 am]
 BILLING CODE 8320-01-P