It has been recently held by the VA General Counsel and now considered policy of the VA, that when such a totally disabled veteran dies, DIC is payable only in those instances where the veteran had actually been in receipt of compensation at the 100% rate for ten or more years. No concessions are made for those veterans who are found to have had entitlement to receive the 100% rate but, based upon the presence of a clear and unmistakable error in a previous VA decision, did not actually receive the compensation payments.

It is with this policy that the DAV takes issue. We feel that if the facts of a case are sufficient, and a veteran (except for VA error) would have been entitled to receive VA compensation at the 100% rate for 10 years prior to death, then entitlement to DIC payments should be extended.

Should

VA General Counsel, however, has held that clear and unmistakable error in a previous decision cannot be declared posthumously, to create entitlement to DIC benefits, as during the veteran's lifetime available remedies of law existed. the veteran have felt that the percentage evaluation for disability was arbitrarily low, these remedies could have been applied. The General Counsel also stated that if a clear and unmistakable error existed, then it would be very unlikely that it would go unremedied if the veteran exhausted all avenues of redress.

While there may be a degree of credence to this opinion, Mr. Chairman, we believe that such an argument cannot be applicable in all cases. There are areas of disability evaluations that are so technical in nature that the average veteran would not be in a position to question VA's decision.

As you know, the Board of Veterans Appeals has jurisdiction to make decisions on all claims for benefits administered by the VA and is empowered to correct an obvious error in the record.

Prior to the General Counsel's Opinion of March 24, 1981, the BVA had latitude to correct a previous error for the purpose of establishing entitlement to DIC payments under 410 (b)(1), and we are aware of one such decision. However, since publication of the General Counsel's Opinion, VA policy has been established which precludes the Board of Veterans Appeals from allowing DIC benefits in these circumstances. A recent decision made by the Board dealt with a veteran rated totally disabled for 9 years, 361 days, and upon the allegation of error that would have established an earlier effective date, the Board dismissed the question as moot..

It is also noteworthy that during the calendar year 1980 the Board of Veterans Appeals reviewed 91 separate claims dealing with alleged clear and unmistakable error. Of that number, 46

were favorably resolved (in excess of 50%). The sole issue in these claims was error being committed in previous decisions.

This number of cases should dissuade the opinion that it would be unlikely that errors would go unnoticed when a Regional Office Rating Board reviews any given claim.

Accordingly, Mr. Chairman, we respectfully request that the Committee carefully study the language of this statute and give consideration to amending the current law to provide DIC payments to those widows of deceased veterans who, at the time of their deaths, were evaluated as totally and permanently disabled from service-connected disability and who were "in receipt of or entitled to receive compensation at the 100% rate at the time of death."

This concludes my statement, Mr. Chairman, and I wish to thank you and the members of the Committee for giving us this opportunity to express our views on these important subjects.

*

GENERAL COUNSEL'S OPINION, VETERANS ADMINISTRATION-Op. G.C. 2-81

March 24, 1981 (Opinion date) May 21, 1981 (Publication date)

SUBJECT: Interpretation of 38 U.S.C. § 410(b)(1)(1976)

QUESTION PRESENTED: Was 38 U.S.C. § 410(b)(1)(1976) intended to create entitlement to survivors' benefits when a veteran was in receipt of compensation for total disability at death, but the total disability rating was not actually in effect for ten years because of Veterans Administration error?

COMMENTS: To illustrate the problem, the following fact pattern is offered:

A veteran, at death, had been in receipt of compensation for total disability. Assume that death occurred in 1980, and the total disability rating had been assigned with an effective date in 1978. After the veteran's death, the Veterans Administration determines that the correct “effective date” for the total rating should have been in 1969, under the effective date rules specified in 38 U.S.C. § 3010 (1976).

Should the Veterans Administration consider such a veteran to have been "in receipt of... compensation at the time of death for a service-connected disability that... was continuously rated totally disabling for a period of ten or more years immediately preceding death," under 38 U.S.C. § 410(b)(1)?

Such a veteran would have been neither actually assigned a total rating continuously for the requisite number of years, nor in receipt of compensation at that rate long enough for his survivors to qualify. We have concluded that it would frustrate the congressional intendment were chapter 13 survivors' benefits granted in such cases.

No agency precedents addressing this question have been located. Therefore, in order to come to a reasonable interpretation of section 410 (b)(1), a brief examination of relevant legislative history is necessary. Prior to 1978, payment of DIC benefits was restricted to the survivors of those servicemembers who died on active duty or veterans who died postservice as a result of "service-connected" disabilities. However, it was brought to Congress' attention by the Blinded Veterans Association and other veterans' groups that certain service-connected disabilities, such as blindness, warrant a disability rating of 100%, but are rarely found as contributing to the cause of death. Accordingly, under the prior law, DIC benefits were generally not available to survivors of these totally disabled veterans. Increased Rates of Compensation: Hearings Before the Subcommittee on Compensation, Pension and Insurance of the House Committee on Veterans' Affairs, 95th Cong., 2d Sess. 23 (1978) (statement of William W. Thompson).

The Blinded Veterans Association's concern produced a sympathetic reaction in Congress. As a result, section 204 of the Veterans' Disability Compensation and Survivors' Benefits Act of 1978 (Pub. L. No. 95-479; 92 Stat. 1564), which added the current 38 U.S.C. §410(b), came into being.

Section 204 and several other items in Pub. I.. No. 95-479 were compromise provisions necessitated when the House and Senate passed markedly different versions of H.R. 11886, 95th Congress. See Joint Explanatory Statement on H.R. 11886, 124 Cong. Rec. 16896 et seq. (1978), reprinted in [1978] U.S. Code Cong. & Ad. News 3530 et seq. As originally passed by the House on June 28, 1978, H.R. 11886 did not contain anything similar to section 204, but the House did pass H.R. 11890 on 1 July 25, 1978, which embodied a very similar proposal. H.R. 11890 would have provided dependency and indemnity compensation benefits to the survivors of veterans who were rated permanently and totally disabled from service-connected causes for a period of at least ten years (or continuously since service) and died of natural causes. See, e.g., H.R. Rep. No. 1230, 95th Cong., 2d Sess. 2 (1978). While H.R. 11890 did not come to a vote in the Senate, the August 7, 1978 Senate-passed version of H.R. 11886 (as amended to substitute the language of S. 2828 as reported by the Senate Committee on Veterans' Affairs) contained a somewhat similar provision. 124 Cong. Rec. 4831 et seq. (1978). The legislative intent becomes clear from a reading of the House Committee on Veterans' Affairs' report on H.R. 11890, and the Senate Committee on Veterans' Affairs' report on S. 2828.

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The House Committee considered H.R. 11890 to have sufficient safeguards to protect against reducing the DIC gram to just another form of survivors' pension. One of the safeguards was the provision requiring the veteran to have suffered total service-connected disability for ten years or since discharge. It also required the veteran's widow to have experienced with him a good part of that loss by specifying that the marriage must have existed for at least five years. H.R. Rep. No. 1230, 95th Cong., 2d Sess. 2 (1978).

Op. G.C. 2-81

The Senate Committee on Veterans' Affairs, in its report, acknowledged many of the same concerns. S. Rep. No. 1054, 95th Cong., 2d Sess. 30 (1978). In addition, the Senate Committee expressed concern that a significant percentage (12% to 25%) of DIC claims involving survivors of veterans rated totally disabled at death were denied because the deaths were not found to be service connected. It was the Committee's view that the appropriate federal obligation to the survivors should be replacement of the support lost when the veteran dies. S. Rep. No. 95-1054, 95th Cong., 2d Sess. 28 (1978), reprinted in [1978] U.S. Code Cong. & Ad. News 3465, 3486. Specifically, the Committee expressed its concern over situations like the following:

Assume that a veteran who is totally blind from service-connected causes dies at the age of 55 from a heart attack, having been so disabled from the age of 22-a period of 33 years. During that period, his wife and he depended upon his disability compensation for income support, but, because his death is not service connected, she would not receive DIC.

The two Committees' reports document that one of the primary considerations in the enactment of the current 38 U.S.C. § 410(b) was Congress' recognition of the financial dependence of the survivors of deceased totally disabled veterans on the disability compensation available during the veterans' lifetimes. However, this situation is less and less plausible as the intervening time between a veteran's rating of total disability and his ensuing death is shorter than the tenyear criterion, and Congress considered a time limit to be necessary. Hearing on Pub. L. No. 95-479 before the Subcommittee on Compensation, Pension, Insurance, and Memorial Affairs of the House Committee on Veterans' Affairs, 96th Cong., 1st Sess. 19 (1979) (statement of Honorable G.V. (Sonny) Montgomery). The shorter the period of time between a rating of total disability and the veteran's death, the less dependent the survivors should be expected to be on the disability income.

Section 410(b)(1) reads:

(b)(1) Notwithstanding the provisions of subsection (a) of this section, when any veteran dies, not as the result of the veteran's own willful misconduct, if the veteran was in receipt of (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability that either (A) was continuously rated totally disabling for a period of ten or more years immediately preceding death, or (B) if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran's discharge or other release from active duty, the Administrator shall pay benefits under this chapter to the veteran's surviving spouse, if such surviving spouse was married to such veteran for not less than two years immediately preceding such veteran's death, and to such veteran's children, in the same manner as if the veteran's death were service connected. (Emphasis added.)

Any ambiguity which a reader sees when separate phrases within the section are examined out of context is cured when the words are read together as a whole. An instrument must always be construed as a whole, and the particular meaning to be attached to any word or phrase is to be ascribed from the framers' purpose. Philbrook v. Glodgett, 421 U.S. 707 (1975); see generally Sutherland, Statutory Construction §§ 46.05, 47.02, 4th Ed. (1975), and 1980 Supp. Here the plain meaning of the words is apparent: the ten-year criterion is set, without an exception. Provision could have been made to cover cases in which entitlement to receive compensation for total disability were the touchstone (see, e.g., 38 U.S.C. § 541(a)), but Congress instead chose the "in receipt of" language. This is presumed to have been a reasoned choice. We note in this regard that, as passed by the House, H.R. 11890 provided that entitlement would arise when a veteran "was in receipt of or entitled to receive" compensation at the total disability rate for the requisite duration The eschewal of the "or entitled" language in the compromise agreement must be presumed a considered choice. Where there is support, as here, in the recorded expressions of legislative intent, we find no compelling reason to depart from the plain meaning of the statute. We conclude that section 410(b)(1) does not provide a basis for finding entitlement in the case you have posited. We have determined as a matter of law that the statutory provision does not afford relief, but further submit that the policy considerations do not demand otherwise when the equities are examined. Your opinion request contemplates a situation in which the Board determines, belatedly (posthumously), that a veteran's disability rating was for a time erroneously low. Prior rating decisions that have become final because of failure to timely appeal can be retroactively amended only on the basis of "clear and unmistakeable error," i.e., not merely upon valid differences in the exercise of rating judgment. 38 C.F.R. § 3.105(a). There are,,of course, available remedies when a veteran believes an assigned disability rating is arbitrarily low. The regional office can be petitioned for a reconsideration, or an appeal to the Board may be taken. A request for reconsideration of an adverse Board decision may be filed. If there has been "clear and unmistakeable" error in assigning the disability rating, it is very unlikely that it would go unremedied should a veteran exhaust all avenues of redress. (Or, it is at least unlikely that any true error the Board would discover post-mortem would not have been recognized by the Board en vie.)