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Op. G.C. 2-81

Finally, we distinguish those agency precedents in which “constructive" receipt of disability compensation has been found in order to create cligibility for death benefits. In 69 Op. Sol. 228 (July 28, 1943), at issue was whether a veteran should be considered to have been at death “in receipt of pension (compensation) for service-connected disability" for purposes of burial benefits under Paragraph II of Veterans' Regulation Numbered 9(a), as amended by Pub. L. No. 76-866 (54 Stat. 1193, October 17, 1940). There, between the date of an original decision in May 1942 denying service connection and a reversal in July of that year by the Central Disability Board, the veteran died. Because accrued benefits were payable, the Solicitor determined that constructive receipt at death could be acknowledged. There, it is clear that cntitlement to receive benefits existed, and that actual receipt at death was debarred only by the veteran's untimely death (nor because of any remission in the pursuit of procedural remedies). Subsequent opinions issued by this office, c.g. in an unpublished memorandum forwarded to the Chief Benefits Director November 12, 1964, are similarly distinguishable because of the fact situations considered.

Because there is an adequate administrative remedy “at law” for curing erroneous disability ratings, we also volunteer the opinion that such cases as posed in your memorandum are not appropriate subjects for administrative relief. A painstaking review of all equitable relief decisions under 38 U.S.C. S 210(c)(2) has divulged none in which relief has been grounded in an erroneous VA rating decision. Such relief should be reserved for those situations in which no remedy exists at law. Were all rating decisions subject to reveiw under section 210(c)2), a tremendous (and we would argue unintended) workload could arise. More important, as in the instant case the only appropriate remedy would be the creation of a running compensation (here, chapter 13) award in contravention of a statute as interpreted by VA. We have serious reservations as to the Administrator's authority to create entitlement to a survivors' compensation award under section 410(b)(1) when Congress has provided a means by which the underlying eligibility defect may be appealed and cured.

HELD: As a matter of law, 38 U.S.C. S 410(b)(1)(1976) does not provide a basis for finding entitlement to survivors' benefits where a veteran, at death, had been in receipt of compensation for total disability but not for the requisite duration solely because of VA error in the rating assigned.

ŅOTE: This opinion was released in the form of a memorandum to the Chairman, Board of Veterans Appeals on March 24, 1981.

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Thank you for your letter of September 4, 1981 and for giving us an opportunity to respond to the proposed DVB Circular on problems in rating individual unemployability.

We not only acknowledge but support the right of the Veterans Administration to establish and maintain a system to monitor and evaluate its prograns. This is clearly necessary to maintain program integrity and to ensure that the veterans Administration is accepting and discharging its statutory obligations. However, we feel that your proposed circular amounts to an overkill and would subvert the intent of individual unemployability evaluations..

It appears from your letter and paragraph one (1) of the proposed circular that problems in establishing and maintaining control of individual unemployability cases are still present. However, we do not understand why it is necessary to issue a cir-: cular to resolve this matter. In 1977, the Veterans Administration reviewed all cases of veterans who were under 60 years of age and in receipt of a total rating due to individual unenployability The purpose of this review was to ensure that proper control was established; after the review the control of these cases was to be interfaced into a new computer system. This new process would establish control and send VA. Form 21-4140 annually directly to the veteran. If this computer system is now operational, the VA should have the capacity to identify cases which are not properly controlled. Accordingly, the Regional Office Directors and/or Adjudication Officers should be contacted and held accountable for their failure to comply with M21-1, paragraphs 49.14 and 55.08. This approach would narrow your focus and allow you to concentrate your total effort on identifying and providing direction to those offices which need assistance in establishing and maintaining control of cases involving individual unemployability evaluations.

86-844 0-81--7

Recently, there has been a systematic effort to circumvent the professional judgement of the rating specialist. We believe this to be evident by an analysis of PG 21-1, Change 281, DVB Circular 21-80-7, hotline call requesting a copy of each new rating establishing entitlement to individual unemployability, plans to review cases of veterans who are over age 60, plans to conduct a second review of all cases involving individual unemployability based upon nervous conditions, and now the proposed DVB Circular.

We are also concerned about the adverse effect the circular will have on Rating Boards. The very nature of Rating Boards: demands freedom from coercion and intimidation. In our opinion, this includes administrative actions which influence or alter the rating members' independent judgement.

It is within the broad discretionary authority of the rating specialist to render decisions which involve judgement. Historically, these decisions, including those based on judgement, were and are presumed to be correct in the absence of clear and unmistakable error.

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The preliminary results from the most recent review revealed that less than five percent. (5%) of nearly 68,000 cases were reduced. We believe this is an indication that at least 958 of the cases involving individual unemployability evaluations were factually and procedurally correct. In our opinion, the reduction rate would have been less if VA Offices like Boston, Togus, Buffalo, Columbia, Des Moines, St. Paul, Sioux Falls, Honolulu, Ft. Harris, Albuquerque and Cheyenne would have followed the intent of DVB Circular 21-80-7. The purpose of the cited circular was to provide for development and reductions only if the grant was clearly and unmistakenly erroneous under VAR 1105 (A). However, it is obvious, based upon the statistics, that the aforementioned offices took the circular as a mandate for a witch-hunt. This resulted in many reductions without a conclusion that the original grant was clearly and unmistakenly

erroneous.

It is also interesting to note that the proposed circular questions the judgement of the Rating Board. This is clearly shown by the cited examples. Most of these cases involved judgement and would not satisfy the stringent criteria of VAR 1105(A). In fact, we believe the examples as written are so weak that they should not be used as a guideline. For instance, 1(a) failed to cite all of the pertinent facts. What did the examination of December 16, 1977 show? Were the clinical findings sufficient to justify the assigned 60% evaluation? where was the veteran working in 1972-1973? What was his job description? Did he quit his employment because of his respiratory disorder? Was there a

history of the findings shown in December, 1977 being present in 1972, 1973? We submit that if these questions were favorably substantiated by the record, the veteran was entitled to individual unemployability.

We suggest that most of your examples contain too many unanswered questions to be used as a format when considering individual unemployability. We therefore request that you reassess your approach or, at the very least, use examples which are clear, concise and leave no room for controversy.

Further, paragraph 7(c) of the proposed circular states in part--"although age will not be considered as a factor in evaluating service-connected disabilities or unemployability, age may be considered in determining permanence of the serviceconnected disability." We believe that this statement is nisleading and contrary to VA policy.

In a letter dated May 27, 1980 fron former VA Administrator Max Cleland, it was stated "when a specific service-connected disability warsens, even though that worsening may be the result of the deteriorating effect of age, whether from gunshot wounds with muscle damage, amputations or other disabilities, a higher evaluation provided by the Rating Schedule would certainly be in order." ve consider the aforementioned statement a modification of pre-existing guidelines and therefore when viewed in the contemporary sense, age is relevant in the adjudication of serviceconnected disability claims, including individual unemployability.

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Ms. Starbuck, for the reasons stated, we do not feel that the proposed circular would do anything to promote efficiency in the adjudication of cases based upon individual unemployability. In addition to the adverse impact on the rating specialist, we sure that the veterans' community is wondering if there is a plan to discontinue individual unemployability evaluations.

In closing, we again wish to thank you for giving us an opportunity to express our views in an area which is so very important to veterans who are unable to obtain and maintain substantial gainful employment as a direct result of their service-connected disability(ies).

Sincerely,

NORMA! B. PARTNETT
National Director of Services

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bc: Mack Fleming

T 2 1981
Mr. Norman Hartnett
National Director of Services
Disabled American Veterans
National Service and Legislative Headquarters
807 Maine Ave., S.W.
Washington, D.C. 20024

Dear Mr. Hartnetts

I appreciate the opportunity to respond to the comments and recommendations expressed in your letter of September 16, 1981, relative to the proposed circular concerning problems in rating claims basad upon indivd: dual memployability.

The field station rating boards are vested with broad discretionary authority in making decisions as to entitlement to benefits. It is Imperative that those decisions be based upon sound judgment following development all phases of each claim and that the decisions be in accordance with sound medical principles and Va regulations.

I wholeheartedly agree that rating boards must operate in an environment which is free from coercion and intimidation. However, this does not mean that the rating activity should be exempt from supervision and training. The proposed circular was prepared to serve as a tool which could be used to train new rating board members and to sharpen the .skills of existing rating specialists. Such an instruction was found to be desirable after recent reviews Indicated continuing difficulties in the rating of claims for total benefits because of individual unemployability.

The examples contained in the circular were included as training aids to Illustrate areas of difficulty for various rating boards. The situations listed summarize the facts found from single cases and are to represent common rating errors. The examples are not intended to serve as guidelines for rating specialists. I believe that the instructions in the circular are sufficient to point cut the purpose of the examples.

The 1977 project to provide for automatic release and control of VA FORM 21-4140, Employment Questionnaire, was requested but never installed. The release and control for return of VA Form 21-4140 continues to rest solely with field station personnel (121–1, paras, 49.14 and 55,08). Interest in automation of these functions was rekindled by the fact that 13,2% of the cases reviewed under the provisions of DVB Circular 21-80-7 had not been adequately controlled. The findings indicate that the control of cases involving grants because of individual unemployability continue to require the attention of management,

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