Summary of Precedent Opinions of the General Counsel, 13991-13997 [2019-06855]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Notices]
[Pages 13991-13997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06855]


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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 Office of the General 
Counsel (OGC) 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 claim matters involving the 
same legal issues. This 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: 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 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 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 https://www.va.gov/ogc/precedentopinions.asp.

VAOPGCPREC 1-2018

    Question Presented: How does a claimant's opt-in to the Rapid 
Appeals Modernization Program (RAMP) affect an existing fee agreement?
    Held: If a claimant, who is represented by a claims agent or 
attorney, withdraws his or her notice of disagreement to opt-in to 
RAMP, that withdrawal does not obstruct the representative's 
eligibility for fees. VA does not construe the RAMP election as 
returning the claimant and representative to a period in the VA 
administrative process for which fees may not be charged or as 
otherwise affecting a legal existing fee agreement.
    Effective Date: August 6, 2018.

James M. Byrne,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 1-2017

    Question Presented: 1. Is obesity per se a ``disease'' for purposes 
of establishing entitlement to service connection under 38 U.S.C. 1110 
and 1131?
    2. If obesity is a disease, may obesity be considered the result of 
a veteran's willful misconduct for purposes of line-of-duty 
determinations under 38 U.S.C. 105(a)?
    3. Is obesity per se a ``disability'' for purposes of secondary 
service connection under 38 CFR 3.310?
    4. If obesity is not a disease, could it be an ``in-service event'' 
from which a service-connected disability may result?
    5. If obesity is not a disease, could it be an ``intermediate 
step'' between a service-connected disability and a current disability 
that may be service connected on a secondary basis under 38 CFR 
3.310(a)?
    Held: 1. The longstanding policy of VA, that obesity per se is not 
a disease or injury for purposes of 38 U.S.C. 1110 and 1131 and 
therefore may not be service connected on a direct basis, is consistent 
with title 38, United States Code.
    2. Because obesity is not considered a disease for purposes of 38 
U.S.C. 1110 and 1131, we do not need to determine whether it may be 
considered the result of a veteran's willful misconduct for purposes of 
line-of-duty determinations under 38 U.S.C. 105(a).
    3. Obesity per se is not a ``disability'' for purposes of 38 CFR 
3.310. If, in a particular case, obesity resulting from a service-
connected disease or injury is found to produce impairment beyond that 
contemplated by the applicable provisions of VA's rating schedule, VA 
may consider an extra-schedular rating under 38 CFR 3.321(b)(1) for the 
service-connected condition based on that impairment.
    4. Obesity cannot qualify as an in-service event because it occurs 
over time and is based on various external and internal factors, as 
opposed to being a discrete incident or occurrence, or a series of 
discrete incidents or occurrences.
    5. Obesity may be an ``intermediate step'' between a service-
connected disability and a current disability that may be service 
connected on a secondary basis under 38 CFR 3.310(a).
    Effective Date: January 6, 2017.

Richard J. Hipolit,
Acting General Counsel, Department of Veterans Affairs.

VAOPGCPREC 1-2015

    Question Presented: 1. May VA pay individuals appointed under 38 
U.S.C. 7405(a)(2) on a time basis either per hour or per annum?
    2. If so, may these individuals be granted a full-time appointment 
under 38 U.S.C. 7401 or 7401(3) concurrently with an appointment under 
38 U.S.C. 7405(a)(2) at the same facility without violating or 
compromising 5 U.S.C. 5533 or Department conflict of interest 
regulations (38 CFR, part 0)?
    3. If VA is able to appoint individuals under 38 U.S.C. 7405(a)(2) 
and compensate these individuals on a time-basis, would such 
appointees, if retired annuitants, be subject to a salary offset under 
5 U.S.C. 8344 or 8468?
    Held: 1. VA may not pay individuals appointed under 38 U.S.C. 
7405(a)(2) on a time basis.
    2. Since the answer to the first question is ``no,'' it is 
unnecessary to respond to this question.
    3. Since the answer to the first question is ``no,'' it is 
unnecessary to respond to this question.
    Effective Date: February 19, 2015.

Leigh A. Bradley,
General Counsel, Department of Veterans Affairs.

[[Page 13992]]

VAOPGCPREC 2-2015

    Question Presented: Does VA's express statutory authority to accept 
gifts, contained in sec. 8301, of title 38, United States Code, include 
the implied authority to solicit gifts?
    Conclusion: VA's express statutory authority to accept gifts under 
38 U.S.C. 8301 includes the implied authority to solicit gifts.
    Effective Date: March 20, 2015.

Leigh A. Bradley,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 3-2015 (Withdrawn)

    Update: 1. VAOPGCPREC 3-2015 held that the designated cemetery 
official may be a proper applicant for a government-furnished headstone 
or marker under 38 CFR 38.632(b)(1). The opinion also held that Civil-
War era graves at Oakwood Cemetery in Richmond, Virginia, which are 
currently identified with marble stones that do not show the names of 
each soldier but have identifying numbers that are tracked in a burial 
ledger, are not ``unmarked graves'' for purposes of VA furnishing a 
headstone or marker under 38 U.S.C. 2306(a)(3), even if such stones 
denote the location of more than one soldier.
    2. This is to inform you that VAOPGCPREC 3-2015 is withdrawn.
    Effective Date: December 7, 2016.

Leigh A. Bradley,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 3-2015 (Original Opinion)

    Question Presented: 1. Is the designated cemetery official a proper 
applicant for a government-furnished headstone or marker under 38 CFR 
38.632(b)(1)?
    2. Do Civil-War era graves currently identified with marble stones 
that do not show the names of each soldier constitute ``unmarked 
graves'' for purposes of VA furnishing a headstone or marker under 38 
U.S.C. 2306(a)(3)?
    3. Do Civil-War era graves currently identified with marble stones 
that do not show the names of each soldier constitute ``unmarked 
graves'' for purposes of VA furnishing a headstone or marker under 38 
U.S.C. 2306(a)(3) if such stones denote the location of more than one 
soldier?
    Conclusions: 1. The designated cemetery official may be a proper 
applicant for a government-furnished headstone or marker under 38 CFR 
38.632(b)(1).
    2. Assuming the facts as stated in this opinion are accurate, 
Civil-War era graves at Oakwood Cemetery currently identified with 
marble stones that do not show the names of each soldier but that have 
identifying numbers that are tracked in a burial ledger are not 
``unmarked graves'' for purposes of VA furnishing a headstone or marker 
under sec. 2306(a)(3).
    3. Assuming the facts as stated in this opinion are accurate, 
Civil-War era graves at Oakwood Cemetery currently identified with 
marble stones that do not show the names of each soldier but that have 
identifying numbers that are tracked in a burial ledger are not 
``unmarked graves'' for purposes of VA furnishing a headstone or marker 
under sec. 2306(a)(3) even if such stones denote the location of more 
than one soldier.
    Effective Date: August 28, 2015 through December 6, 2016.

Leigh A. Bradley,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 4-2015

    Question Presented: 1. Is the Board of Veterans' Appeals (Board), 
upon a veteran's death, required to dismiss the veteran's dispute as to 
payment of potential attorney's fees under 38 U.S.C. 5904(d) from money 
withheld from past-due disability benefits awarded to the veteran 
during the veteran's lifetime?
    2. If the Board is required to dismiss the dispute, may a party 
pursue payment of the withheld money as accrued benefits pursuant to 38 
U.S.C. 5121?
    3. If the Board is required to dismiss the dispute, what effect 
does that dismissal have on the underlying decisions regarding that 
issue?
    Held: 1. Upon a veteran's death, the Board is required to dismiss 
the veteran's dispute as to payment of potential attorney's fees under 
38 U.S.C. 5904(d) when the money withheld from past-due disability 
benefits awarded to the veteran meets the statutory definition for 
accrued benefits.
    2. A claim, pending at the time of a veteran's death, challenging 
an attorney's entitlement to payment of attorney fees under sec. 5904 
from the veteran's retroactive periodic monetary benefits may provide a 
basis for an accrued benefits claim under sec. 5121, because such a 
claim concerns entitlement to periodic monetary benefits allegedly due 
and unpaid to the veteran at the time of death.
    3. The Board's dismissal of the veteran's dispute regarding payment 
of attorney's fees renders all underlying decisions regarding that 
issue that were not final at the time of the veteran's death legal 
nullities.
    Effective Date: December 3, 2015.

Leigh A. Bradley,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 1-2014

    Question Presented: Is a State home domiciliary required to provide 
primary care to a resident on whose behalf VA pays per diem for that 
care?
    Held: In order for a State to receive per diem payments form VA for 
a resident in its State home domiciliary, the home must provide primary 
care to the resident.
    Effective Date: March 21, 2014.

Will A. Gunn,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 2-2014

    Question Presented: Are claims for burial benefits administered by 
the National Cemetery Administration (NCA) subject to the notice 
requirements in sec. 5103, of title 38, United States Code, in light of 
the unique time requirements associated with such claims?
    Held: The notice requirements of 38 U.S.C. 5103 apply to all claims 
for benefits administered by VA, including claims for benefits 
administered by NCA. However, NCA may determine that notice under 38 
U.S.C. 5103 is unnecessary in particular cases, either because VA has 
sufficient evidence to grant the requested benefit or because 
applicable law and undisputed facts establish that the claimant is 
ineligible for the claimed benefit. Further, pursuant to a recent 
amendment to sec. 5103(a), NCA may provide the notice required by that 
section ``by the most effective means available,'' which may include 
providing such notice on a benefit application form or transmitting it 
to the claimant electronically. Finally, NCA has discretion to adopt 
reasonable procedures for applying the requirements of sec. 5103 in the 
context of time-sensitive claims for burial benefits.
    Effective Date: May 19, 2014.

Will A. Gunn,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 5-2014 (Revised)

    Question Presented: 1. Is VA legally obligated under 38 U.S.C. 
5103A(a) to obtain the service and other related records (including 
investigation reports, service treatment records, service personnel 
records, Service Record Books, etc.) that belong or pertain to a

[[Page 13993]]

Servicemember other than the Veteran who is seeking VA benefits, when 
such records may be potentially relevant to the Veteran's claim for 
benefits?
    2. Do the special processing procedures set forth in 38 CFR 
3.304(f)(5) for developing and deciding claims involving post-traumatic 
stress disorder (PTSD) asserted to be due to personal assault and/or 
military sexual trauma (MST) impose a requirement on VA to obtain 
records that belong or pertain to a Servicemember other than the 
Veteran claimant when such records may be useful for corroborating the 
Veteran's account of the stressor incident or to provide evidence of 
behavior changes following the incident?
    a. Would it be required, and/or would it be legally appropriate, to 
attempt to solicit a written statement from, or depose during a 
hearing, the asserted Servicemember assailant for purposes of obtaining 
information concerning a claim of personal assault or MST that has been 
raised by a Veteran claimant?
    3. If VA is legally obligated to obtain the records of a 
Servicemember other than the Veteran:
    a. Does the Privacy Act, 5 U.S.C. 552, prohibit VA from obtaining 
and associating with a Veteran claimant's claims file service and other 
related records that belong or pertain to another Servicemember? What 
legal factors are for consideration in making this determination?
    b. Assuming the Privacy Act does not prohibit VA from obtaining and 
associating a non-claimant Servicemember's records with a Veteran 
claimant's claims file, must VA obtain permission to request those 
records, and from whom must VA obtain such permission? Is the answer to 
this question the same or different if the Servicemember whose records 
are being sought is deceased? If permission is denied, does VA have any 
additional duty to assist the claimant in obtaining the records?
    c. If records related to the non-claimant Servicemember are 
obtained, how should they be handled? May copies of the records be 
associated with the Veteran claimant's claims file? If so, must the 
records first be redacted in order to remove all personally 
identifiable information?
    i. If VA is permitted to associate the non-claimant Servicemember's 
redacted records in the Veteran claimant's claims file, is VA also 
required to conduct a full and complete search of the Veteran 
claimant's claims file for other named references to the Servicemember 
and redact them (such as in this case where the alleged assailant is 
named in both records located in the claims file and in the remand 
decision of the Court of Appeals for Veterans Claims)?
    Held: 1. In adjudicating a particular Veteran's claim for benefits, 
VA generally would be obligated under 38 U.S.C. 5103A to make 
reasonable efforts to obtain records pertaining to another individual 
if: (a) Those records were adequately identified, would be relevant to 
the Veteran's claim, and would aid in substantiating the claim; and (b) 
VA would be authorized to disclose the relevant portions of such 
records to the Veteran under the Privacy Act and 38 U.S.C. 5701 and 
7332. VA adjudicators generally may not consider documents that cannot 
be disclosed to the claimant.
    2. Pursuant to the Privacy Act, 5 U.S.C. 552a, and 38 U.S.C. 5701, 
VA records pertaining to another individual generally may be disclosed 
to a claimant only: (1) Pursuant to the written consent of the 
individual to whom the records pertain; (2) pursuant to a court order; 
or (3) where there is both an applicable routine use under the Privacy 
Act and a VA finding under 38 U.S.C. 5701(e) that disclosure of records 
other than names and addresses would serve a useful purpose. Because 
there currently is no applicable routine use, disclosure of another 
individual's VA records to a VA claimant for purposes of the latter's 
benefits claim generally requires written consent or a court order. 
Further, if the records at issue contain information protected by 38 
U.S.C. 7332, any written consent or court order must comply with the 
specific requirements of that statute and VA's implementing 
regulations.
    3. If a claimant identifies relevant records pertaining to another 
individual that are in the custody of the Department of Defense or 
another Federal agency, it would be consistent with VA's statutory duty 
to assist for VA to ask the custodian agency to furnish such records, 
but only if they may be disclosed to the VA claimant. The custodian 
agency would be responsible for determining whether its records may be 
disclosed to the VA claimant for the requested purpose. In making such 
requests, VA should clearly explain to the custodian agency the 
circumstances and conditional nature of the request. Specifically, VA 
should explain that the records are requested on behalf of a VA 
claimant who is not the individual to whom the record pertains and that 
VA requests a determination by the custodian agency as to whether such 
records may be disclosed to the VA claimant under the Privacy Act and 
any routine uses applicable to the relevant system of records of the 
custodian agency.
    4. VA's duty under 38 U.S.C. 5103A to make ``reasonable efforts'' 
to assist claimants in obtaining evidence may in some cases include the 
duty to request that a third party provide written consent for VA to 
disclose records pertaining to the third party to the claimant. The 
Veterans Benefits Administration (VBA) may wish to consider issuing 
regulations or establishing uniform procedures to address the unique 
and sensitive issues that may arise where the records of an alleged 
assailant or other third party may be relevant to a claim. In the 
absence of regulations or procedures specifically addressing this 
issue, it generally must be resolved on a case-by-case basis. In 
determining whether ``reasonable efforts'' include such a request in a 
particular case, VA may consider factors including the third party's 
privacy interest in his or her records; the likelihood that the records 
exist; the likelihood that the request would result in consent to 
disclose the records to the claimant; and the potential for such 
requests to generate conflict or otherwise adversely affect the safety, 
health, or rights of either the claimant or the third party. A 
determination that ``reasonable efforts'' do not require seeking a 
third-party's consent to disclose his or her records to the claimant 
would be most strongly justified in a case where the interests of the 
third party are adverse to the claimant's interest, such as where the 
claimant alleges that the third party assaulted the claimant or engaged 
in other improper or unlawful behavior. In contrast, where the 
interests of the claimant and the third party are not adverse, there 
ordinarily would be a stronger basis for a finding that VA's 
``reasonable efforts'' may include asking the third party to consent to 
disclosure of his or her records to the claimant.
    5. If the individual to whom a record pertains is deceased, the 
Privacy Act would not apply, but other limitations would apply. First, 
under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(6), VA may 
be required to balance the privacy interests of a decedent's surviving 
family members against the public interest in disclosure of information 
concerning the decedent in order to determine whether disclosure is 
warranted. Second, VA must ensure compliance with 38 U.S.C. 5701 and 
7332. Under sec. 5701(e), VA records other than names and addresses may 
be disclosed if VA finds that such disclosure would serve a ``useful 
purpose.'' Alternatively, the next of kin of the person to whom the 
records pertain may provide written consent to

[[Page 13994]]

disclose the records to a VA claimant. However, the next of kin cannot 
consent to disclosure of information protected by sec. 7332 for 
purposes of supporting a claim by a person other than a survivor or 
dependent of the person to whom the records pertain.
    6. The provisions of 38 CFR 3.304(f)(5) do not impose on VA any 
duty to assist beyond that provided under 38 U.S.C. 5103A. Section 
3.304(f)(5) identifies the types of evidence that may be relevant to 
corroborate a Veteran's claim of an in-service assault and seeks to 
ensure that the Veteran is aware of the types of evidence that may 
support his or her claim. The existence and extent of any duty on VA's 
part to obtain relevant records is governed by sec. 5103A and VA's 
regulations implementing that statute.
    7. VA is not required to solicit a written statement from, or to 
depose during a hearing, the individual who allegedly assaulted a 
claimant who is seeking VA benefits for disability due to the alleged 
assault. Further, to prevent disparate treatment of similarly situated 
claimants and disparate commitment of VA adjudication resources, 38 CFR 
3.159(g) reserves to the Secretary of Veterans Affairs the authority to 
authorize assistance beyond that currently specified in statute and 
regulation. Accordingly, VA generally may not, in an individual case, 
solicit statements or testimony from an alleged assailant, as doing so 
would give rise to the disparities Sec.  3.159(g) was designed to 
prevent.
    8. If records pertaining to an individual other than the claimant 
are obtained and considered in relation to the claim, VA must include 
them in the claims file. However, VA should exercise care in ensuring 
that the protected information included in the claims file is limited 
to the information that VA is authorized to disclose under the 
applicable written consent, routine use, useful purpose determination, 
court order, or other authority. Accordingly, it may be necessary to 
redact the records to remove identifying information that is not 
relevant to the claim or not otherwise within the scope of the relevant 
authorization, such as the individual's address, telephone number, and 
Social Security number. However, if the claimant provided VA with the 
Servicemember's name, VA would not need to redact that name from the 
documents placed in the file. If VA includes records pertaining to a 
third party in a VA claims file, it ordinarily would not need to search 
the entire file for other records containing protected information, 
unless it has reason to believe that the file may contain protected 
third-party information that was not provided by the claimant.
    Effective Date: January 5, 2017.

Richard J. Hipolit,
Acting General Counsel, Department of Veterans Affairs.

VAOPGCPREC 5-2014 (Original Opinion)

    1. Is VA legally obligated under 38 U.S.C. 5103A(a) to obtain the 
service and other related records (including investigation reports, 
service treatment records, service personnel records, Service Record 
Books, etc.) that belong or pertain to a Servicemember other than the 
Veteran who is seeking VA benefits, when such records may be 
potentially relevant to the Veteran's claim for benefits?
    2. Do the special processing procedures set forth in 38 CFR 
3.304(f)(5) for developing and deciding claims involving PTSD asserted 
to be due to personal assault and/or MST impose a requirement on VA to 
obtain records that belong or pertain to a Servicemember other than the 
Veteran claimant when such records may be useful for corroborating the 
Veteran's account of the stressor incident or to provide evidence of 
behavior changes following the incident?
    a. Would it be required, and/or would it be legally appropriate, to 
attempt to solicit a written statement from, or depose during a 
hearing, the asserted Servicemember assailant for purposes of obtaining 
information concerning a claim of personal assault or MST that has been 
raised by a Veteran claimant?
    3. If VA is legally obligated to obtain the records of a 
Servicemember other than the Veteran:
    a. Does the Privacy Act, 5 U.S.C. 552, prohibit VA from obtaining 
and associating with a Veteran claimant's claims file service and other 
related records that belong or pertain to another Servicemember? What 
legal factors are for consideration in making this determination?
    b. Assuming the Privacy Act does not prohibit VA from obtaining and 
associating a non-claimant Servicemember's records with a Veteran 
claimant's claims file, must VA obtain permission to request those 
records, and from whom must VA obtain such permission? Is the answer to 
this question the same or different if the Servicemember whose records 
are being sought is deceased? If permission is denied, does VA have any 
additional duty to assist the claimant in obtaining the records?
    c. If records related to the non-claimant Servicemember are 
obtained, how should they be handled? May copies of the records be 
associated with the Veteran claimant's claims file? If so, must the 
records first be redacted in order to remove all personally 
identifiable information?
    i. If VA is permitted to associate the non-claimant Servicemember's 
redacted records in the Veteran claimant's claims file, is VA also 
required to conduct a full and complete search of the Veteran 
claimant's claims file for other named references to the Servicemember 
and redact them (such as in this case where the alleged assailant is 
named in both records located in the claims file and in the remand 
decision of the Court of Appeals for Veterans Claims)?
    Held: 1. In adjudicating a particular Veteran's claim for benefits, 
VA generally would be obligated under 38 U.S.C. 5103A to make 
reasonable efforts to obtain records pertaining to another individual 
if: (a) Those records were adequately identified, would be relevant to 
the Veteran's claim, and would aid in substantiating the claim; and (b) 
VA would be authorized to disclose the relevant portions of such 
records to the Veteran under the Privacy Act and 38 U.S.C. 5701 and 
7332. VA adjudicators generally may not consider documents that cannot 
be disclosed to the claimant.
    2. Pursuant to the Privacy Act, 5 U.S.C. 552a, and 38 U.S.C. 5701, 
VA records pertaining to another individual generally may be disclosed 
to a claimant only:
    (1) Pursuant to the written consent of the individual to whom the 
records pertain;
    (2) pursuant to a court order; or (3) where there is both an 
applicable routine use under the Privacy Act and a VA finding under 38 
U.S.C. 5701(e) that disclosure of records other than names and 
addresses would serve a useful purpose. Because there currently is no 
applicable routine use, disclosure of another individual's VA records 
to a VA claimant for purposes of the latter's benefits claim generally 
requires written consent or a court order. Further, if the records at 
issue contain information protected by 38 U.S.C. 7332, any written 
consent or court order must comply with the specific requirements of 
that statute and VA's implementing regulations.
    3. If a claimant identifies relevant records pertaining to another 
individual that are in the custody of the Department of Defense or 
another Federal agency, it would be consistent with VA's statutory duty 
to assist for VA to ask the custodian agency to furnish such records, 
but only if they may be disclosed to the VA claimant. The custodian 
agency would be responsible

[[Page 13995]]

for determining whether its records may be disclosed to the VA claimant 
for the requested purpose. In making such requests, VA should clearly 
explain to the custodian agency the circumstances and conditional 
nature of the request. Specifically, VA should explain that the records 
are requested on behalf of a VA claimant who is not the individual to 
whom the record pertains and that VA requests a determination by the 
custodian agency as to whether such records may be disclosed to the VA 
claimant under the Privacy Act and any routine uses applicable to the 
relevant system of records of the custodian agency.
    4. VA's duty under 38 U.S.C. 5103A to make ``reasonable efforts'' 
to assist claimants in obtaining evidence may in some cases include the 
duty to request that an individual to whom a relevant record pertains 
provide written consent for VA to disclose that record to the claimant. 
The Veterans Benefits Administration may wish to consider issuing 
regulations or establishing uniform procedures to address the unique 
and sensitive issues that may arise where the records of an alleged 
assailant or other third party may be relevant to a claim. In the 
absence of such regulations or procedures, VA adjudicators must make 
case-by-case determinations as to whether the duty to assist requires 
VA to seek another individual's consent to disclosure of his or her 
records to the claimant. That determination may be based on, among 
other things, the extent to which the claimant has identified specific 
records likely to contain relevant evidence and the feasibility and 
appropriateness, in the particular case of seeking the consent of the 
individual to whom the record pertains. Where the records at issue 
pertain to an individual who allegedly assaulted the claimant, it would 
be advisable to determine whether the claimant wants VA to contact that 
individual.
    5. If the individual to whom a record pertains is deceased, the 
Privacy Act would not apply, but other limitations would apply. First, 
under FOIA, 5 U.S.C. 552(b)(6), VA may be required to balance the 
privacy interests of a decedent's surviving family members against the 
public interest in disclosure of information concerning the decedent in 
order to determine whether disclosure is warranted. Second, VA must 
ensure compliance with 38 U.S.C. 5701 and 7332. Under sec. 5701(e), VA 
records other than names and addresses may be disclosed if VA finds 
that such disclosure would serve a ``useful purpose.'' Alternatively, 
the next of kin of the person to whom the records pertain may provide 
written consent to disclose the records to a VA claimant. However, the 
next of kin cannot consent to disclosure of information protected by 
sec. 7332 for purposes of supporting a claim by a person other than a 
survivor or dependent of the person to whom the records pertain.
    6. The provisions of 38 CFR 3.304(f)(5) do not impose on VA any 
duty to assist beyond that provided under 38 U.S.C. 5103A. Section 
3.304(f)(5) identifies the types of evidence that may be relevant to 
corroborate a Veteran's claim of an in-service assault and seeks to 
ensure that the Veteran is aware of the types of evidence that may 
support his or her claim. The existence and extent of any duty on VA's 
part to obtain relevant records is governed by sec. 5103A and VA's 
regulations implementing that statute.
    7. VA is not required to solicit a written statement from, or to 
depose during a hearing, the individual who allegedly assaulted a 
claimant who is seeking VA benefits for disability due to the alleged 
assault. Further, to prevent disparate treatment of similarly situated 
claimants and disparate commitment of VA adjudication resources, 38 CFR 
3.159(g) reserves to the Secretary of Veterans Affairs the authority to 
authorize assistance beyond that currently specified in statute and 
regulation. Accordingly, VA generally may not, in an individual case, 
solicit statements or testimony from an alleged assailant, as doing so 
would give rise to the disparities Sec.  3.159(g) was designed to 
prevent.
    8. If records pertaining to an individual other than the claimant 
are obtained and considered in relation to the claim, VA must include 
them in the claims file. However, VA should exercise care in ensuring 
that the protected information included in the claims file is limited 
to the information that VA is authorized to disclose under the 
applicable written consent, routine use, useful purpose determination, 
court order, or other authority. Accordingly, it may be necessary to 
redact the records to remove identifying information that is not 
relevant to the claim or not otherwise within the scope of the relevant 
authorization, such as the individual's address, telephone number, and 
Social Security number. However, if the claimant provided VA with the 
Servicemember's name, VA would not need to redact that name from the 
documents placed in the file. If VA includes records pertaining to a 
third party in a VA claims file, it ordinarily would not need to search 
the entire file for other records containing protected information, 
unless it has reason to believe that the file may contain protected 
third-party information that was not provided by the claimant.
    Effective Date: August 12, 2014 through January 5, 2017.

Tammy L. Kennedy,
Acting General Counsel, Department of Veterans Affairs.

VAOPGCPREC 6-2014

    Question Presented: Whether, pursuant to 38 U.S.C. 5103(a)(1), VA 
is required upon receipt of a claim to reopen based upon new and 
material evidence to provide notice of the information and evidence 
necessary to substantiate the particular factual element or elements 
that were found insufficient in the previous denial of the claim.
    Response: Pursuant to 38 U.S.C. 5103(a)(1), upon receipt of a claim 
to reopen a previously denied claim, VA is not required to provide 
notice of the information and evidence necessary to substantiate the 
particular factual element or elements that were found insufficient in 
the previous denial of the claim.
    Effective Date: November 21, 2014.

Tammy L. Kennedy,
Acting General Counsel, Department of Veterans Affairs.

VAOPGCPREC 1-2012

    Question Presented: What is the Secretary's responsibility for 
managing and distributing funds held in escrow for a Specially Adapted 
Housing (SAH) construction case if a Veteran decides not to complete 
the purchase of the property after grant funds have been deposited into 
an escrow account?
    Held: When a Veteran decides not to complete the purchase of a 
property after SAH grant funds have been disbursed, the Secretary must 
determine whether the contractor has both performed his obligations 
under the construction contract and satisfied the SAH guidelines. If 
the contractor has done so, VA should release the funds to the 
contractor in accordance with 38 CFR 36.4410 and the escrow agreement. 
If the contractor has not, the funds should remain in the escrow 
account pending civil litigation.
    Effective Date: January 24, 2012.

Will A. Gunn,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 2-2012

    Question Presented: With regard to the implementation of Public Law 
112-154--
    a. Are new regulations necessary before implementing sec. 202?

[[Page 13996]]

    b. When are secs. 204 and 205 effective?
    c. Are surviving spouses under sec. 206 exempt from paying the 
statutory loan fee usually required under 38 U.S.C. 3729? Are such 
spouses eligible for double entitlement?
    d. Is sec. 701 consistent with current regulations and policies? 
What regulations, if any, are necessary before implementing the 
provision?
    Held: a. Regulations are not necessary before implementing sec. 
202, as a new regulation would merely be a restatement of the statute. 
VA may provide the assistance, effective as of October 1, 2012. VA is 
still required, nevertheless, to promulgate a new final regulation, not 
subject to notice and comment, to address the statutory change.
    b. In accordance with the plain meaning of the statute, the 
Department should implement sec. 204 on August 6, 2013, which is one 
year from the date of enactment of Public Law 112-154, and should have 
already implemented sec. 205, as it became effective August 6, 2012.
    c. Surviving spouses under sec. 206 are, to the same extent as 
surviving spouses under 38 U.S.C. 3701(b)(2), exempt from paying the 
statutory loan fee. Also, sec. 206 surviving spouses are eligible for 
double entitlement.
    d. Section 701 is not inconsistent with current regulations and 
policies and, for the most part, can be implemented before a final rule 
is published. To the extent VA is required to implement a new policy 
decision not expressly prescribed in the statute or addressed in 
current regulations, VA should publish a proposed rule and allow the 
public to comment on VA's plans for implementation.
    Effective Date: October 31, 2012.

Will A. Gunn,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 3-2012

    Question Presented: VBA plans to contact individuals whose claims 
for compensation for PTSD due to MST (also called in-service personal 
or sexual assault) have been previously denied and to offer them the 
opportunity to have their claims reviewed. The purpose of the review is 
to ensure that VBA properly developed and decided the claims. As 
necessary, VBA plans to take corrective action to remedy errors 
identified in the review. In connection with this review, your staff 
has asked for our advice on the following questions:
    1. Under what legal authority can VBA undertake such a review of 
previously denied claims for compensation? Can VA undertake such review 
and corrective action without requiring the submission of new and 
material evidence or an allegation of clear and unmistakable error 
(CUE)? Does this authority apply to review of conditions other than 
PTSD which may be claimed as a result of MST? Would that authority 
apply to a review and possible reconsideration of the claim without the 
express written consent of the claimant?
    2. What information should VBA include in its letter to claimants 
regarding this review?
    3. After its review, if VBA should decide to grant the benefit 
originally sought, what factors affect the assigning of an effective 
date? In particular, would VBA be able to apply 38 CFR 3.114, ``Change 
of law or Department of Veterans Affairs issue'' to claims which are 
granted as a result of the review?
    4. Does VA have the authority, by regulation or otherwise, to 
extend the liberalized evidentiary standards associated with 
compensation claims involving MST to claims based upon mental disorders 
other than PTSD or any physical disorders also alleged to involve MST?
    5. If VA does not have this authority, what options may it consider 
to liberalize evidentiary standards for disabilities other than PTSD 
that may involve MST?
    6. What is the legal basis, if any, for VA to use difference-of-
opinion authority in this review to grant compensation for disabilities 
caused by MST after adverse decisions have become final, i.e., 
decisions for which the appeal period has elapsed?
    7. What consequences, if any, might VA expect from the use of 
difference-of-opinion authority to overturn final decisions as 
described above?
    Held: 1. VBA has authority under 38 U.S.C. 303 to initiate a review 
of any class of claim decisions and may revise the decisions subject to 
the statutes and regulations governing finality. The consent of the 
claimant is not required to conduct such a review.
    2. If the appeal period has elapsed or a final Board decision has 
issued, a decision on a claim may be revised only on the basis of 
submission of new and material evidence or a determination by VBA or 
the Board, as appropriate, that the original decision was the product 
of CUE. VBA may accept a claim to reopen and may develop for new and 
material evidence even if the claimant does not proffer new and 
material evidence at the time of the request to reopen. If new and 
material evidence is obtained and the claim is ultimately reopened and 
benefits are awarded, the effective date would be based on the date 
that the application to reopen was filed and the facts found, unless 
the new and material evidence consists of official service department 
records, in which case the effective date may be as early as the date 
of the original claim, if supported by the facts found. Decisions that 
are not timely appealed become final and are not subject to revision on 
the basis of difference of opinion.
    3. If the appeal period has not elapsed and VBA wishes to revise 
the claim decision based on the evidence in the file, VBA may revise 
the decision in a manner favorable to the claimant based on difference 
of opinion, if the matter is referred to Central Office. 38 CFR 
3.105(b). If review of the file leads VBA to believe that the claim may 
not have been adequately developed, VBA may conduct the necessary 
development. If development leads to an award of benefits prior to the 
expiration of the appeal period, the effective date would be the date 
entitlement arose or the date of receipt of the claim, whichever is 
later. If the claimant submits new and material evidence prior to the 
expiration of the appeal period and receives an award of benefits on 
that basis, the effective date would be the date entitlement arose or 
the date of original receipt of the claim, whichever is later. If a 
review of the file reveals the original decision was a product of CUE, 
the original decision must be revised, and the effective date would be 
the date entitlement arose or the date of the original receipt of the 
claim, whichever is later.
    4. Neither 38 CFR 3.304(f)(5), nor documents issued by VA providing 
guidance on the implementation of that provision, would constitute a 
liberalizing administrative issue for purposes of the effective date 
rules of 38 CFR 3.114.
    5. VA has authority to extend by notice and comment rulemaking 
evidentiary rules associated with compensation claims involving MST to 
claims involving physical and mental disabilities other than PTSD. 
Further, under existing statutes and regulations, VA may in a 
particular case find that evidence from alternative sources, such as 
those described in Sec.  3.304(f)(5), is sufficient to establish a 
particular fact at issue, such as that a personal assault occurred 
during service.
    Effective Date: December 20, 2012.

Will A. Gunn,
General Counsel, Department of Veterans Affairs.

VAOPGCPREC 1-2011

    Question Presented: A. What procedures are used to designate

[[Page 13997]]

documents as constituting Veterans Health Administration (VHA) medical 
quality-assurance documents?
    B. What types of documents qualify as quality-assurance documents?
    C. Is the Board authorized to examine quality-assurance records or 
documents to determine whether they are protected by 38 U.S.C. 5705?
    D. Does VA's duty to assist in claim development under 38 U.S.C. 
5103A require the Board to attempt to obtain quality-assurance records?
    Held: A. Under 38 U.S.C. 5705(a), records and documents created by 
VA as part of a medical quality-assurance program are confidential and 
privileged and may not be disclosed to any person or entity except as 
provided in sec. 5705(b). For a record or document to be protected from 
disclosure by sec. 5705(a), VA must designate the VA systematic health-
care review activities to be carried out by or for VA for purposes of 
improving the quality of VA medical care or the utilization of VA 
health-care resources in VA health-care facilities, and VA must specify 
in regulations prescribed to implement sec. 5705 those activities so 
designated. VA has designated, at 38 CFR 17.501(a), four systematic 
health-care review activities to be carried out by or for VA for the 
stated purposes. In addition, only records or documents and parts of 
records or documents resulting from those activities that have been 
described in advance and in writing by the Under Secretary for Health 
(USH), a Veterans Integrated Service Network (VISN) director, or a VHA 
medical facility director as being included under the four designated 
classes of healthcare quality-assurance reviews are protected by sec. 
5705 and implementing VA regulations. Further, if the activity that 
generated the document was performed at a VA medical treatment 
facility, either the activity must have been performed by staff of that 
facility or the non-staff individuals who performed the activity must 
have had their roles in performing the activity designated in writing 
before performing the activity. Whether these statutory, regulatory, 
and policy requirements were met in any particular case is a matter for 
determination by the appropriate VHA official in the first instance 
and, if the VHA determination is affirmative, by the General Counsel or 
Deputy General Counsel on appeal.
    B. The types of documents that qualify as quality-assurance 
documents are described in 38 CFR 17.501. They may be in written, 
computer, electronic, photographic, or any other form. Generally, to 
constitute a VHA quality assurance record or document that is 
privileged and confidential, a record or document: (1) Must have been 
produced by or for VA in conducting a medical quality-assurance 
activity; (2) must have resulted from a quality-assurance activity 
described in advance in writing by the USH, a VHA VISN director, or a 
health-care facility director as being within the classes of healthcare 
quality assurance reviews listed in 38 CFR 17.501(a); and (3) must 
either: (A) Identify individual practitioners, patients, or reviewers; 
(B) contain discussions, by healthcare evaluators during a review of 
quality-assurance information, relating to the quality of VA medical 
care or the utilization of VA medical resources; (C) be individual 
committee, service, or study team minutes, notes, reports, memoranda, 
or other documents either produced by healthcare evaluators in 
deliberating on the findings of healthcare reviews or prepared for 
purposes of discussion or consideration by healthcare evaluators during 
a quality-assurance review; (D) be a memorandum, letter, or other 
document from a medical facility to a VISN director or VA Central 
Office that contains information generated by a quality-assurance 
activity; or (E) be a memorandum, letter, or other document produced by 
a VISN director or VA Central Office that either responds to or 
contains information generated by a quality-assurance activity. 
Clinical treatment records would generally not satisfy these criteria. 
Records and documents that do not qualify for protection under 38 
U.S.C. 5705(a), even if they otherwise meet the criteria under Sec.  
17.501(a)-(c) for quality-assurance documents, are described in 38 CFR 
17.501(g).
    C. Under 38 U.S.C. 5705(b)(5), nothing in sec. 5705 is to be 
construed as limiting the use of quality-assurance records and 
documents within VA, and 38 U.S.C. 5705(b)(1) explicitly requires 
disclosures of quality-assurance records or documents under certain 
specified circumstances. However, under 38 CFR 17.508(a), access within 
VA to confidential and privileged quality-assurance records and 
documents is restricted to employees who need such information to 
perform their governmental duties and who are authorized access by the 
VA medical facility director, VISN director, or USH, by their 
designees, or by VA's implementing regulations at 38 CFR 17.500 through 
17.511. Neither sec. 5705(b)(1) nor VA's implementing regulations at 38 
CFR 17.500 through 17.511 authorize disclosure of quality-assurance 
records or documents to an agency of original jurisdiction or the Board 
for purposes of adjudicating a claim or an appeal to the Secretary of a 
claim decision.
    D. Section 5103A, of title 38, United States Code, requires 
agencies of original jurisdiction and the Board to make reasonable 
efforts to request from VHA any quality-assurance records or documents 
that are relevant to a claim, provided the claimant furnishes 
information sufficient to locate the records or documents, and, if VHA 
denies access to the records and documents on the basis that they are 
protected by sec. 5705 and implementing regulations, to appeal VHA's 
denial to OGC under 38 CFR 17.506. Under 38 CFR 17.508(c), any quality-
assurance record or document, whether confidential and privileged or 
not, may be provided to the General Counselor any attorney within OGC, 
wherever located. If VHA and OGC conclude that the records and 
documents are protected by sec. 5705 and implementing regulations, VA 
may not consider them and rely on them in the adjudication of the 
claim. If VHA or OGC concludes that the records and documents are not 
confidential and privileged, VA may consider them in adjudicating the 
claim.
    Effective Date: April 19, 2011.

Will A. Gunn,
General Counsel, Department of Veterans Affairs.

Signing Authority

    The Secretary of Veterans Affairs, or designee, 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 September 27, 2018, for 
publication.

    Dated: April 3, 2019.
Luvenia Potts,
Program Specialist, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.
[FR Doc. 2019-06855 Filed 4-5-19; 8:45 am]
BILLING CODE 8320-01-P