[Federal Register Volume 64, Number 187 (Tuesday, September 28, 1999)]
[Notices]
[Pages 52374-52376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25131]
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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' benefit claimants and their representatives, with notice of
VA's interpretation regarding the legal matter at issue.
FOR FURTHER INFORMATION CONTACT: Jane L. Lehman, Chief, Law Library,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420, (202) 273-6558.
SUPPLEMENTARY INFORMATION: VA regulations at 38 CFR 2.6(e)(9) 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'
benefit 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.
VAOPGCPREC 04-99
Question Presented
What evidence is necessary to establish a well-grounded claim for
[[Page 52375]]
compensation under 38 U.S.C. 1117 and 38 CFR 3.317 for disability due
to an undiagnosed illness suffered by a veteran of the Persian Gulf
War?
Held
A well-grounded claim for compensation under 38 U.S.C. 1117(a) and
38 CFR 3.317 for disability due to undiagnosed illness generally
requires the submission of some evidence of: (1) Active military,
naval, or air service in the Southwest Asia theater of operations
during the Persian Gulf War; (2) the manifestation of one or more signs
or symptoms of undiagnosed illness; (3) objective indications of
chronic disability during the relevant period of service or to a degree
of disability of 10 percent or more within the specified presumptive
period; and (4) a nexus between the chronic disability and the
undiagnosed illness. With respect to the second and fourth elements,
evidence that the illness is ``undiagnosed'' may consist of evidence
that the illness cannot be attributed to any known diagnosis or, at
minimum, evidence that the illness has not been attributed to a known
diagnosis by physicians providing treatment or examination. The type of
evidence necessary to establish a well-grounded claim as to each of
those elements may depend upon the nature and circumstances of the
particular claim. For purposes of the second and third elements, the
manifestation of one or more signs or symptoms of undiagnosed illness
or objective indications of chronic disability may be established by
lay evidence if the claimed signs or symptoms, or the claimed
indications, respectively, are of a type which would ordinarily be
susceptible to identification by lay persons. If the claimed signs or
symptoms of undiagnosed illness or the claimed indications of chronic
disability are of a type which would ordinarily require the exercise of
medical expertise for their identification, then medical evidence would
be required to establish a well-grounded claim. With respect to the
third element, a veteran's own testimony may be considered sufficient
evidence of objective indications of chronic disability, for purposes
of a well-grounded claim, if the testimony relates to non-medical
indicators of disability within the veteran's competence and the
indicators are capable of verification from objective sources. Medical
evidence would ordinarily be required to satisfy the fourth element,
although lay evidence may be sufficient in cases where the nexus
between the chronic disability and the undiagnosed illness is capable
of lay observation.
Effective Date: May 3, 1999.
VAOPGCPREC 05-99
Question Presented
For purposes of benefits authorized by section 421 of Pub. L. 104-
204, does the term ``spina bifida'' include neural tube defects, such
as encephalocele and anencephaly, which do not involve the spinal
column?
Held
Pursuant to 38 U.S.C. 1802, chapter 18 of title 38, United States
Code, applies with respect to all forms of spina bifida other than
spina bifida occulta. For purposes of that chapter, the term ``spina
bifida'' refers to a defective closure of the bony encasement of the
spinal cord, but does not include other neural tube defects such as
encephalocele and anencephaly.
Effective Date: May 3, 1999.
VAOPGCPREC 06-99
Question Presented
a. May a claim for a total disability rating based on individual
unemployability for a particular service-connected disability be
considered when a schedular 100-percent rating is already in effect for
another service-connected disability?
b. Would any additional benefit be available in the case of a
veteran having one service-connected disability rated 100-percent
disabling under the rating schedule and another, separate disability
for which the veteran has been awarded a TDIU rating?
Held
a. A claim for a total disability rating based on individual
unemployability for a particular service-connected disability may not
be considered when a schedular 100-percent rating is already in effect
for another service-connected disability.
b. No additional monetary benefit would be available in the
hypothetical case of a veteran having one service-connected disability
rated 100-percent disabling under the rating schedule and another,
separate disability rated totally disabling due to individual
unemployability under 38 CFR 4.16(a). Further, the availability of
additional procedural protections applicable under 38 CFR 3.343(c) in
the case of a total disability rating based on individual
unemployability would not provide a basis for consideration of a rating
under section 4.16(a) where a veteran already has a service-connected
disability rated 100-percent disabling under the rating schedule.
Effective Date: June 7, 1999.
VAOPGCPREC 07-99
Question Presented
A. In view of the amendments made by section 8052 of the Omnibus
Budget Reconciliation Act of 1990 (OBRA 1990), can a disability due to
substance abuse caused by a service-connected disability be service
connected under 38 CFR 3.310(a)?
B. Can the aggravation by a service-connected disability of a
nonservice-connected disability arising out of substance abuse be
service connected under 38 CFR 3.310(a)?
C. In light of the decision of the United States Court of Appeals
for Veterans Claims (Veterans Court) in Barela v. West, 11 Vet. App.
280 (1998), and VAOPGCPREC 2-98, may dependency and indemnity
compensation (DIC) be considered ``disability compensation''?
D. May the Department of Veterans Affairs (VA) award DIC based
either on a veteran's death caused by a disability due to substance
abuse that was itself secondary to a service-connected disability or on
a veteran's death while receiving or entitled to receive compensation
for such a substance-abuse disability that was continuously rated
totally disabling for an extended period immediately preceding death?
Held
A. The amendments made by section 8052 of the Omnibus Budget
Reconciliation Act of 1990, Pub. L. 101-508, Sec. 8052, 104 Stat. 1388,
1388-351, which are applicable to claims filed after October 31, 1990,
prohibit the payment of compensation to a veteran under 38 U.S.C. 1110
or 1131 for service-connected disability (``disability compensation'')
for a disability that is a result of a veteran's own abuse of alcohol
or drugs (a ``substance-abuse disability''), and they preclude direct
service connection of a substance-abuse disability for purposes of all
VA benefits, including dependency and indemnity compensation. The
amendments do not preclude service connection under 38 CFR 3.310(a) of
a substance-abuse disability that is proximately due to or the result
of a service-connected disease or injury. A substance-abuse disability
caused by a service-connected disability can be service connected under
section 3.310(a) for purposes of all VA benefits. However, disability
compensation cannot be paid for such a disability.
B. The aggravation of a substance-abuse disability by a service-
connected
[[Page 52376]]
disability can be service connected under section 3.310(a) for purposes
of all VA benefits. However, disability compensation cannot be paid for
such aggravation.
C. Dependency and indemnity compensation is a benefit distinct from
disability compensation for purposes of the amendments made by section
8052 of the Omnibus Budget Reconciliation Act of 1990 and is not
affected by that Act's prohibition on payment of disability
compensation for substance-abuse disability.
D. VA may award dependency and indemnity compensation to a
veteran's survivors based on either the veteran's death from a
substance-abuse disability secondarily service connected under 38 CFR
3.310(a) (entitlement established under 38 U.S.C. 1310) or based on a
veteran's death while in receipt of or entitled to receive compensation
for a substance-abuse disability secondarily service connected under
section 3.310(a) and continuously rated totally disabling for an
extended period immediately preceding death (entitlement established
under 38 U.S.C. 1318).
Effective Date: June 9, 1999.
VAOPGCPREC 08-99
Question Presented
Whether 38 U.S.C. 1910 prohibits the Department of Veterans Affairs
(VA) from contesting a Government life insurance policy issued as a
result of administrative error on the basis that the insured carries
more than $10,000 of Government life insurance in contravention of 38
U.S.C. 1903?
Held
a. Where, as a result of administrative error, Government life
insurance policies issued to the same insured total in excess of
$10,000 in violation of 38 U.S.C. 1903, the policies are incontestable
pursuant to 38 U.S.C. 1910 except for fraud or nonpayment of premiums,
or on the ground that the applicant was not a member of the military or
naval forces of the United States.
b. A contract for National Service Life Insurance (NSLI) cannot be
created by the doctrine of promissory estoppel. To give rise to an NSLI
contract, there must be a meeting of the minds of the contracting
parties. Where veterans paid premiums on additional NSLI policies which
did not belong to them because of erroneous billing by the Department
of Veterans Affairs (VA), additional NSLI policies in favor of these
individuals were not created.
Effective Date: August 11, 1999.
VAOPGCPREC 09-99
Question Presented
a. Does the Board of Veterans' Appeals (BVA) have the authority to
adjudicate or address in the first instance the question of timeliness
of a substantive appeal? If not, what is the appropriate course of
action for the BVA to take when it raises the issue of timeliness of
the substantive appeal for the first time on appeal?
b. What is the appropriate course of action for the BVA to take
when it discovers for the first time on appeal that no substantive
appeal has been filed on an issue certified to the BVA for appellate
review by the agency of original jurisdiction (AOJ)?
Held
a. The BVA has the authority to adjudicate or address in the first
instance the question of timeliness of a substantive appeal and may
dismiss an appeal in the absence of a timely-filed substantive appeal.
It should, however, afford the claimant appropriate procedural
protections to assure adequate notice and opportunity to be heard on
the question of timeliness.
b. When the BVA discovers in the first instance that no substantive
appeal has been filed in a case certified to the BVA for appellate
review by the agency of original jurisdiction, it may dismiss the
appeal. Again, it should afford the claimant appropriate procedural
protections.
Effective Date: August 18, 1999.
VAOPGCPREC 10-99
Question Presented
Should the accelerated course measurement provisions of 38 CFR
21.4272(g) be used in determining the total number of credit hours for
which mitigating circumstances are presumed pursuant to 38 U.S.C.
3680(a)(3)(B) and 10 U.S.C 16136(b)?
(Note: For convenience, this opinion discusses the regulation's
application to 38 U.S.C. 3680(a)(3)(B) and does not further
reference 10 U.S.C. 16136(b) since the latter statute merely
requires that the former will apply to persons eligible under the
chapter 1606, title 10, program.)
Held
VA regulation, 38 CFR 21.4272(g), which provides a basis (i.e.,
``equivalent credit hours'') for measuring training time when courses
are pursued during nonstandard terms, is inapplicable to, and should
not be used in determining whether nonpunitive course withdrawals
exceed the equivalent of six semester hours for purposes of applying
the mitigating circumstances exception under 38 U.S.C. 3680(a)(3)(B).
Effective Date: August 24, 1999.
By direction of the Secretary.
Leigh A. Bradley,
General Counsel.
[FR Doc. 99-25131 Filed 9-27-99; 8:45 am]
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