Summary of Precedent Opinions of the General Counsel

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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