Summary of Precedent Opinions of the General Counsel, 5801-5803 [E7-2031]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 72, Number 25 (Wednesday, February 7, 2007)]
[Notices]
[Pages 5801-5803]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2031]


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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 https://
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]
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