[Federal Register: June 11, 1999 (Volume 64, Number 112)]
[Notices]               
[Page 31680-31681]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jn99-133]

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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 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 01-99

Questions Presented

    a. May compensation be paid under 38 U.S.C. 1151 for disability 
incurred or aggravated as the result of a sexual assault by a 
Department of Veterans Affairs (VA) physician which occurred while a 
veteran was receiving an examination or medical treatment at a VA 
facility?
    b. May compensation be paid under 38 U.S.C. 1151 for a psychiatric 
disability incurred or aggravated as the result of a VA examination or 
medical treatment, or is compensation under those provisions limited to 
incurrence or aggravation of physical disability?

Held:

    a. Section 1151 of title 38, United States Code, as applicable to 
claims filed before October 1, 1997, does not authorize payment of 
compensation for disability incurred or aggravated as the result of a 
sexual assault by a Department of Veterans Affairs (VA) physician which 
occurred while a veteran was receiving treatment or an examination at a 
VA facility. For purposes of compensation under those provisions, the 
disability must result from the medical treatment or examination itself 
and not from independent causes occurring coincident with the treatment 
or examination. A sexual assault generally would not constitute medical 
treatment or examination within the meaning of 38 U.S.C. 1151 and would 
not provide a basis for compensation under those provisions. However, 
if the actions or procedures alleged to have constituted an assault 
would otherwise be within the ordinary meaning of the terms ``medical 
treatment or ``examination,'' then compensation may be payable under 
section 1151. Accordingly, it may be necessary to make factual 
determinations in individual cases as to whether the actions or 
procedures alleged to have caused disability constituted part of 
``medical treatment'' or ``examination'' or were independent actions 
merely coincidental with such treatment or examination.
    b. VA may pay compensation under 38 U.S.C. 1151 for psychiatric 
disability due to a disease or injury incurred or aggravated as a 
result of VA hospitalization, medical or surgical treatment, 
examination, or vocational rehabilitation.


[[Page 31681]]


    Effective Date: February 16, 1999.

VAOPGCPREC 02-99

Redesignated Advisory Opinion VAOPGCADV 08-99

    Date: April 7, 1999.

VAOPGCPREC 03-99

Question Presented

    What is the proper effective date of the award and date of 
commencement of payment for a monetary allowance for spina bifida 
awarded under 38 U.S.C. 1805 in a case where the claim for such 
benefits was filed prior to November 21, 1997 (the date of enactment of 
Pub. L. No. 105-114, which amended 38 U.S.C. 1806 retroactive to 
October 1, 1997), or prior to October 1, 1997 (the date 38 U.S.C. 1805 
and 1806 became effective)?

Held

    Section 1806 of title 38, United States Code, as amended by Pub. L. 
No. 105-114, governs the determination of the effective date and date 
of commencement of payment for any monetary allowance awarded under 38 
U.S.C. 1805 for spina bifida in children of Vietnam veterans. Although 
Pub. L. No. 105-114 was enacted on November 21, 1997, Congress 
expressly provided that the amendment to section 1806 would be 
retroactive to October 1, 1997, when 38 U.S.c. 1805 and 1806 first 
became effective. Because Congress expressly prescribed the retroactive 
reach of Pub. L. 105-114, the judicial default rules stated in Landgraf 
v. USI Film Products, 511 U.S. 244 (1994) and Karnas v. Derwinski, 1 
Vet. App. 308 (1991), are inapplicable. Accordingly, the provisions the 
provisions of section 1806, as amended, would govern the effective date 
and date of commencement of payment of any award under section 1805, 
including awards based on claims filed prior to October 1, 1997. The 
proper effective date and date of commencement of payment in any 
particular case must be determined by application of the statutory 
provisions referenced in section 1806, as amended.

    Effective Date: March 26, 1999.

    By Direction of the Secretary.
Leigh A. Bradley,
Genenral Counsel.
[FR Doc. 99-14915 Filed 6-10-99; 8:45 am]
BILLING CODE 8320-01-M