Summary of Precedent Opinions of the General Counsel, 4430 [2011-1486]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Notices]
[Page 4430]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1486]



[[Page 4430]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS


Summary of Precedent Opinions of the General Counsel

AGENCY: Department of Veterans Affairs.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is publishing a 
summary of legal interpretations issued by the Office of General 
Counsel 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 future claim matters 
involving the same legal issues. The summary is published to provide 
the public, and, in particular, Veterans' benefits claimants and their 
representatives, with notice of VA's interpretations regarding the 
legal matters at issue.

FOR FURTHER INFORMATION CONTACT: Susan P. Sokoll, Law Librarian, 
Department of Veterans Affairs, 810 Vermont Avenue, NW. (026H), 
Washington, DC 20420, (202) 461-7623.

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 precedential 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, not only in the matter at issue, but also in 
future 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.
    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://www4.va.gov/ogc/precedentopinions.asp.

VAOPGCPREC 5-2010

    Questions Presented:
    Does 38 U.S.C. 3677(c)(7), which provides that ``[n]o course of 
training will be considered bona fide if given to an eligible veteran 
or person who is already qualified by training and experience for the 
job'' preclude approval of an on-the-job training (OJT) program for 
employees of State approving agencies (SAA) who are identified by 
contract as professional staff members responsible for approving 
programs of education or training?
    Held:
    Section 3677(c)(7) precludes approval of an OJT program for SAA 
employees who are identified by contract as professional staff members 
responsible for approving programs of education because these employees 
are already qualified by training and experience for the job. Because 
we have determined that all professional staff members responsible for 
approving programs of education or training are already qualified by 
training and experience for the job and, therefore, are not eligible 
for participation in an OJT program, it is not necessary to address the 
additional questions presented in B1 and B2 of your request.
    Effective Date: September 10, 2010

VAOPGCPREC 6-2010

    Questions Presented:
    a. How does the June 18, 2010, Presidential Memorandum on Enhancing 
Payment Accuracy Through a ``Do Not Pay List'' affect Department of 
Veterans Affairs (VA) benefit payments?
    b. Does the Presidential Memorandum override in any way the 
procedural protections that are provided for in VA law and regulations, 
particularly the notice to claimants and beneficiaries and the 
opportunity for them to be heard that is afforded in connection with 
adjudicative actions denying their claims or reducing or discontinuing 
their current awards?
    c. Does the Computer Matching and Privacy Protection Act of 1988 
apply to the database matching requirements of the Presidential 
memorandum?
    Held:
    a. The June 18, 2010, Presidential Memorandum on Enhancing Payment 
Accuracy Through a ``Do Not Pay List'' requires Federal agencies, 
including the Department of Veterans Affairs (VA), to review pre-
payment and pre-award procedures and ensure that a thorough review of 
available databases with relevant information on eligibility occurs 
before the release of Federal funds. The Presidential Memorandum 
relates only to the procedures VA must follow before making benefit 
payments or awards, not the statutory or regulatory criteria for 
determining eligibility for, or entitlement to, any benefit.
    b. VA would treat the information obtained from the database review 
pursuant to the Presidential Memorandum in the same manner as 
information obtained from other sources. For a claimant denied an award 
or payment as a result of information disclosed in a database review, 
VA must summarize the information obtained through the database review 
in its decision notification and any statement of the case. In the case 
of information obtained from the database review that would result in 
the reduction or discontinuance of, or otherwise adversely affect, a 
current award of compensation, pension, or dependency and indemnity 
compensation, with certain exceptions, VA must, before issuing a 
decision, advise the beneficiary of the information received, the 
proposed effect that the information would have on the beneficiary's VA 
benefits, and the beneficiary's opportunity to submit evidence or have 
a hearing. Among the exceptions is that VA will send written notice to 
the beneficiary at the same time it takes an adverse action if the 
evidence reasonably indicates that a beneficiary is deceased.
    c. The Computer Matching and Privacy Protection Act of 1988 applies 
to the database matching requirements of the Presidential Memorandum to 
the extent the databases that make up the Do Not Pay List are used to 
verify eligibility for, or entitlement to, VA benefits by virtue of a 
computerized comparison of two automated systems of records.
    Effective Date: September 12, 2010.

    Dated: January 19, 2011.

    By Direction of the Secretary.
Will A. Gunn,
General Counsel, Department of Veterans Affairs.
[FR Doc. 2011-1486 Filed 1-24-11; 8:45 am]
BILLING CODE 8320-01-P