[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)]
[Notices]
[Pages 35414-35415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14476]
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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 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
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
[[Page 35415]]
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://www.va.gov/ogc/precedentopinions.asp.
VAOPGCPREC 3-2014
Questions Presented
On September 4, 2013, the Attorney General announced that the
President directed the Executive Branch to cease enforcement of the
definitions of ``spouse'' and ``surviving spouse'' in title 38, United
States Code, to the extent that they limit recognition of marital
status to couples of the opposite sex. Given the President's
instruction, how should VA determine effective dates for benefits based
on same-sex marriage?
Held
1. The President's directive to cease enforcement of the
definitions of ``spouse'' and ``surviving spouse'' in title 38, United
States Code, to the extent that those definitions preclude recognition
of same-sex marriages, should be given retroactive effect as it relates
to claims still open on direct review as of September 4, 2013. If VA
awards benefits in such a case, the effective date of the award should
be determined under 38 U.S.C. Sec. 5110 as if the statutes barring
recognition of same-sex marriage were not in effect when the claim was
filed.
2. For new claims or reopened claims received after September 4,
2013, VA should apply 38 U.S.C. Sec. 5110(g) to assign an effective
date if to do so would be to the claimant's benefit. However, if a new
claim establishes entitlement to an effective date earlier than
September 4, 2013, by operation of 38 U.S.C. Sec. 5110(d)-(f), (h),
(j)-(l), or (n), then section 5110(g) should not be applied to limit
the availability of that earlier effective date.
Effective Date: June 17, 2014.
Will A. Gunn,
General Counsel, Department of Veterans Affairs.
VAOPGCPREC 4-2014
Question Presented
How will the Department of Veterans Affairs (VA) administer spousal
benefits in accordance with 38 U.S.C. Sec. 103(c) in light of
variances in state law on the issue of same-sex marriage?
Held
1. The plain language of section 103(c) requires that a person be
married to a Veteran to be considered the ``spouse'' of the Veteran and
requires VA to look to state law to determine the validity of a
marriage. A domestic partnership or civil union that is not recognized
as a ``marriage'' under state law cannot be considered a valid marriage
for VA purposes.
2. Section 103(c) provides two alternative bases for determining
the validity of a marriage. Section 103(c) provides that VA shall look
to ``the law of the place where the parties resided at the time of the
marriage or the law of the place where the parties resided when the
right to benefits accrued'' (emphasis added). Under this standard, if a
marriage is valid in one of the places of residence identified in the
statute, it will be valid for VA purposes, even if it was not
recognized as valid under the laws of any other place in which the
parties resided.
3. Under section 103(c), ``at the time of the marriage'' means when
the parties entered into the marriage. If the parties' marriage is
valid under the law of the place where they resided at the time of the
inception of their marriage, it is valid for VA purposes.
4. We construe the term ``when the right to benefits accrued'' in
section 103(c) to refer to: (1) The point in time at which the claimant
filed a claim that is ultimately found to be meritorious in
establishing entitlement to a benefit or increased benefit for which a
marriage to a Veteran is a prerequisite; or (2) if entitlement cannot
be established as existing at the time the claim is submitted, then at
such later date as of which all requirements of entitlement are met.
Once VA has determined a marriage valid under section 103(c), such
determination shall be recognized in subsequent adjudicatory decisions
involving the same or other VA benefits unless there is a change in
marital status through death or judicial action.
5. The phrase ``place where the parties resided'' is interpreted to
mean the place where the parties regularly lived or had their home, as
distinguished from a place in which they were present on a temporary
basis. The provision includes parties who lived in a place continuously
for a reasonable period of time and those who relocated to a place with
the intent to live there either permanently or for a reasonable period
of time. A party's temporary absence from the place they ordinarily
lived would not defeat the finding that they resided in that place. If
the parties resided in different jurisdictions at their time of
marriage, VA may consider the marriage valid for VA purposes if it is
valid under the law of either jurisdiction. In addition to U.S. states,
the term ``place'' may include U.S. territories and possessions, the
District of Columbia, foreign nations, and other areas governed by a
recognized system of laws pertaining to marriage, such as tribal laws.
6. The plain language of section 103(c) applies only to determine
the validity of a marriage to a Veteran. It thus applies for purposes
of establishing eligibility or ineligibility for benefits or services
provided on the basis of the marriage of a ``veteran'' (including, in
some instances, active-duty service members and others defined to be
``veterans'' under certain statutory provisions). In other instances,
however, when VA provides benefits or services based on the marital
status of an individual who is not considered a Veteran, section 103(c)
generally would not apply in determining the validity of a marriage to
such an individual.
Effective Date: June 17, 2014.
Will A. Gunn,
General Counsel, Department of Veterans Affairs.
Signing Authority: On June 17, 2014, Will A. Gunn, General
Counsel, approved this document and authorized the undersigned to
sign and submit this notice to the Office of the Federal Register
for publication electronically as an official document of the
Department of Veterans Affairs.
Robert C. McFetridge,
Director, Office of Regulations Policy and Management, Office of the
General Counsel, Department of Veterans Affairs.
[FR Doc. 2014-14476 Filed 6-19-14; 8:45 am]
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