[Federal Register: February 7, 2007 (Volume 72, Number 25)]
[Notices]
[Page 5801-5803]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe07-174]
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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' 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) 273-6558.
SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(8) 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'
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://www1.va.gov/OGC/
.
VAOPGCPREC 10-2004
Questions Presented
A. In general, what impact does a veteran's return to active duty
have on a pending claim for benefits? What is the status of the
veteran's claim? What actions should or may the Department of Veterans
Affairs (VA) take?
B. When a veteran's claim has been remanded to a regional office
for an examination and the veteran is not available for the examination
because of the veteran's return to active duty, what is the status of
the veteran's claim? What actions should or may VA take?
C. When a veteran with a pending claim returns to active duty and
is able to attend a scheduled examination while on active duty, what is
the status of the veteran's claim? What actions should or may VA take?
D. If a veteran with a pending claim returns to active duty and
dies while on active duty, what is the effect of the pending claim on a
subsequent claim for accrued benefits?
Held
A. A veteran's return to active duty while his or her claim for
benefits from the Department of Veterans Affairs (VA) is pending does
not alter the rights and duties of the claimant and VA under any
statute or regulation with respect to the development and adjudication
of the claim or the status of the claim within the meaning of any
statute or regulation. VA should process the claims of such veterans in
the same fashion as it would had the veterans not returned to active
duty. If a veteran's return to active duty temporarily prevents VA from
providing a necessary medical examination or taking other action
necessary to a proper decision on the claim, VA may suspend or defer
action on the claim until the necessary actions can be accomplished. VA
may not deny a claim solely because the veteran has returned to active
duty or solely because the veteran is temporarily unavailable for a
necessary examination due to his or her return to active duty.
B. When a veteran's claim has been remanded to a regional office
for an examination and the veteran is not available for the examination
because of the veteran's return to active duty, VA may defer action on
the claim until the required examination can be conducted. VA may not
deny the claim solely because the veteran is temporarily unavailable
for examination due to his or her return to active duty. The veteran's
return to active duty does not alter the status of the veteran's claim
within the meaning of any statute or regulation.
C. When a veteran has a pending claim and returns to active duty,
but is able to attend a VA examination while on active duty, VA should
process the claim in the same manner as it would if the veteran had not
returned to active duty. The veteran's return to active duty does not
alter the status of the veteran's claim within the meaning of any
statute or regulation.
D. If a veteran with a pending claim returns to active duty and
dies on active duty before the claim is decided, the pending claim may
provide the basis for an award of accrued benefits to a survivor under
38 U.S.C. 5121(a). Accrued benefits consist only of amounts ``due and
unpaid'' to the deceased beneficiary. Because 38 U.S.C. 5304(c)
prohibits VA from paying
[[Page 5802]]
compensation or pension to a veteran for any period in which the
veteran received active service pay, accrued benefits under 38 U.S.C.
5121(a) may not include compensation and pension amounts for any period
for which the veteran received active service pay.
Effective Date: September 21, 2004.
VAOPGCPREC 1-2005
Question Presented
Does the Veterans Claims Assistance Act of 2000 (VCAA) apply to
claims by states regarding the construction, recognition, and payment
of per diem to State homes?
Held
The provisions of the VCAA requiring VA to provide notice of any
information or any medical or lay evidence necessary to substantiate
the claim, and the duty to assist a claimant in obtaining evidence
necessary to substantiate a claim, are not applicable to a claim by a
state regarding State home construction, recognition, and payment of
per diem.
Effective Date: February 9, 2005.
VAOPGCPREC 2-2005
Question Presented
Does the tax exemption provided to beneficiaries of the Department
of Veterans Affairs' (VA) Servicemembers' Group Life Insurance (SGLI)
and Veterans' Group Life Insurance (VGLI) programs under 38 U.S.C.
1970(g) apply to the Federal tax on generation-skipping transfers (GST)
imposed by chapter 13 of title 26, United States Code?
Held
Under 38 U.S.C. 1970(g), Servicemembers' Group Life Insurance and
Veterans Group Life Insurance proceeds that are to be paid directly to
a beneficiary who is more than one generation below the insured are
exempt from the Federal tax on generation-skipping transfers imposed by
chapter 13 of title 26, United States Code.
Effective Date: February 9, 2005.
VAOPGCPREC 3-2005
Question Presented
When does the sixty-first day of incarceration occur pursuant to 38
U.S.C. 5313(a) and 1505(a) when a veteran is given credit for time
served prior to conviction or prior to sentencing for a felony, or, for
purposes of section 1505(a), a misdemeanor?
Held
The provisions of 38 U.S.C. 5313(a) and 1505(a) do not apply until
all of the following requirements of the statutes have been satisfied:
(1) Incarceration (imprisonment); (2) in a Federal, State, or local
penal institution; (3) in excess of sixty days; and (4) for (as a
result of) conviction of a felony (or a misdemeanor under section
1505(a)). For purposes of these statutes, when a veteran is
incarcerated for conviction for a felony, or, for purposes of section
1505(a), a misdemeanor, the sixty-first day of incarceration cannot
occur until sixty-one days after guilt is pronounced by a judge or jury
and the veteran is incarcerated in a penal institution because of the
determination of guilt, notwithstanding that the veteran may be given
credit for time served prior to those events. However, once a veteran
is imprisoned or incarcerated in a penal institution because of
pronouncement of guilt for a felony (or misdemeanor in the case of
section 1505(a)), the period of incarceration for purposes of 38 U.S.C.
5313(a) and 1505(a) would include the period of incarceration between
the date of conviction and the date of sentencing, i.e., reduction of
benefits could occur as of the sixty-first day after conviction.
Effective Date: February 23, 2005.
VAOPGCPREC 4-2005
Question Presented
Whether a request for equitable relief may be considered ``an
administrative remedy'' as that terminology is used in section 113(b)
of Public Law 106-419?
Held
A request for equitable relief, although an administrative remedy
in the broad sense, does not constitute ``an administrative remedy'' as
that terminology is used within the context of Public Law 106-419,
Sec. 113(b).
Effective Date: April 21, 2005.
VAOPGCPREC 5-2005
Question Presented
May the Department of Veterans Affairs award a total disability
rating based on ``temporary'' individual unemployability under 38 CFR
4.16(b)?
Held
Section 4.16 of title 38, Code of Federal Regulations, authorizes
the Department of Veterans Affairs to assign a total rating based on
individual unemployability (TDIU rating) based upon a veteran's
temporary (i.e., non-permanent) inability to follow a substantially
gainful occupation. However, not every period of inability to work will
establish an inability to follow a substantially gainful occupation
warranting a TDIU rating, because it may be possible to secure and
retain employment and to earn significant income despite occasional
periods of incapacity. VA must make determinations regarding ability or
inability to follow a substantially gainful occupation on a case-by-
case basis, taking into account such factors as the frequency and
duration of periods of incapacity or time lost from work due to
disability, the veteran's employment history and current employment
status, and the veteran's annual income from employment, if any.
Effective Date: November 25, 2005.
VAOPGCPREC 1-2006
Question Presented
You requested our opinion regarding the proper delimiting date
under 38 U.S.C. 3031 for a veteran who qualifies for education benefits
under the Montgomery GI Bill (MGIB) by serving at least three years on
active duty followed by at least four years in the Selected Reserve.
Held
In a case where a veteran meets the eligibility requirements for
Chapter 30 MGIB education benefits under both 38 U.S.C. 3011 and 3012,
the veteran has the right to claim entitlement under whichever of such
sections is most advantageous to the veteran. This includes choosing to
become entitled under section 3012 when that affords a later delimiting
date for using those benefits pursuant to 38 U.S.C. 3031(a)(1).
Effective Date: May 21, 2006.
VAOPGCPREC 2-2006
Question Presented
Is 38 U.S.C. 6107 applicable where a fiduciary misused benefits of
a Department of Veterans Affairs (VA) beneficiary before enactment of
that statute if VA makes a finding of misuse after that date?
Held
Where VA makes a determination after December 10, 2004, that a
fiduciary misused a beneficiary's VA benefits, 38 U.S.C. 6107 is
applicable according to its terms, regardless of whether the misuse
occurred before or after that date.
Effective Date: June 30, 2006.
VAOPGCPREC 3-2006
Question Presented
Does former 38 CFR 4.71a, Diagnostic Code (DC) 5285 (2003),
authorize a single 10-percent additional disability
[[Page 5803]]
rating based on demonstrable deformity of a vertebral body, or does DC
5285 permit multiple 10-percent additional ratings for multiple
deformed vertebrae?
Held
Where residuals of vertebral fracture are rated based on limited
motion or muscle spasm, former 38 CFR 4.71a, Diagnostic Code (DC) 5285
(2003), authorizes no more than a single 10-percent increase for
demonstrable deformity of a vertebral body or vertebral bodies in the
spinal segment (cervical, dorsal, or lumbar) that is the subject of the
rating. Where spine fracture residuals cause limited motion to more
than one spinal segment and DC 5285 permits separate ratings for each
segment, DC 5285 authorizes a 10-percent increase to the rating
assigned to each segment of the spine containing at least one
demonstrably deformed vertebral body.
Effective Date: June 23, 2006.
VAOPGCPREC 4-2006
Question Presented
1. Pursuant to Public Law 109-233, may the Department of Veterans
Affairs (VA) provide Specially Adapted Housing (SAH) assistance to
active duty service members who are temporarily residing in a home
owned by a family member?
2. Does Public Law 109-233 change the one-time usage of SAH grant
benefits?
Held
1. Section 101 of Public Law 109-233 does not authorize VA to
provide SAH assistance authorized under 38 U.S.C. 2102A to active duty
service members who are temporarily residing in a home owned by a
family member.
2. Section 101 changes the one-time usage limitation on SAH grants
to allow veterans to obtain up to three grants under chapter 21, title
38, United States Code, in an aggregate amount not to exceed $50,000
for veterans eligible under 38 U.S.C. 2101(a) and $10,000 under 38
U.S.C. 2101(b).
Effective Date: August 3, 2006.
VAOPGCPREC 5-2006
Question Presented
Is incarceration in a correctional facility that is owned and
operated by a private corporation pursuant to a contract with a State
to provide correctional facilities for the State incarceration in a
``Federal, State, or local penal institution'' within the meaning of 38
U.S.C. 5313?
Held:
Section 5313 of title 38, United States Code, limits the payment of
compensation to any person who is incarcerated in a Federal, State, or
local penal institution for a period greater than 60 days for
conviction of a felony. Incarceration in a correctional facility owned
and operated by a private corporation pursuant to a contract with a
State department of corrections responsible within a State for the
incarceration of convicted felons is incarceration in a State penal
institution within the meaning of section 5313.
Effective Date: August 11, 2006.
VAOPGCPREC 6-2006
Question Presented
You asked us whether the tax exemption provided by 38 U.S.C.
1970(g) to payments due or to become due under the Department of
Veterans Affairs Servicemembers' Group Life Insurance (SGLI) program
also applies to payments under Traumatic SGLI (TSGLI).
Held:
The tax exemption provided by 38 U.S.C. 1970(g) to payments due or
to become due under the Servicemembers' Group Life Insurance program
also applies in the same manner to payments due or to become due under
the traumatic injury protection provided by 38 U.S.C. 1980A.
Effective Date: November 25, 2006.
VAOPGCPREC 1-2007
Question Presented
Do the procedures required by 38 CFR 3.105(e) apply where a total
disability rating based on individual unemployability is reinstated for
a limited period on the grounds of clear and unmistakable error in the
original termination of the rating?
Held:
Section 3.105(e) of title 38, Code of Federal Regulations, requires
the Department of Veterans Affairs (VA) to follow specified procedures,
including providing advance notice and an opportunity to present
evidence and be heard, when terminating a total disability rating based
on individual unemployability if the termination would result in
reduction of compensation payments currently being made. However, if VA
retroactively reinstates such a total disability rating on the grounds
of clear and unmistakable error in the original termination of the
rating, section 3.105(e) does not apply to the determination of the
duration of the reinstated rating because there would be no reduction
in compensation payments currently being made.
Effective Date: January 17, 2007.
Withdrawal of Previously Published Opinions of the General Counsel--
VAOPGCPREC 6-93 (In Part) & VAOPGCPREC 12-94 (In Full)
We are withdrawing our opinion in VAOPGCPREC 6-93 in part, and our
opinion in VAOPGCPREC 12-94 in its entirety, due to a 2002 rulemaking
action that amended 38 CFR 3.1000(d)(4) and a related manual provision.
VAOPGCPREC 6-93 held in part that an award of accrued benefits under 38
U.S.C. 5121(a) may be based on logical inferences from information in
the file at the date of the beneficiary's death. VAOPGCPREC 12-94
clarified this holding of VAOPGCPREC 6-93 by stating that where a
veteran had in the past supplied evidence of unreimbursed medical
expenses that could be expected to be incurred in like manner in
succeeding years, such evidence could form the basis for a
determination that evidence in the file at the date of the veteran's
death permitted prospective estimation of medical expenses for accrued
benefits purposes, regardless of whether such expenses were deducted
prospectively during the veteran's lifetime.
Effective Date: August 11, 2006.
Dated: January 31, 2007.
By direction of the Secretary.
Paul J. Hutter,
Acting General Counsel.
[FR Doc. E7-2031 Filed 2-6-07; 8:45 am]
BILLING CODE 8320-01-P