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VA General Counsel Precedent Opinions |
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PREC 10-93 Presumption of Permanent and Total Disability -- 38 C.F.R. § 3.326(b)
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PREC 10-93 Presumption of Permanent and Total Disability -- 38 C.F.R. § 3.326(b) Citation: Vet. Aff. Op. Gen Couns. Prec. 10-93, VAOPGCPREC 10-93, 1993 QUESTION PRESENTED: What legal effect has the provision in 38 C.F.R. § 3.326(b) that evidence will not be required solely to establish permanent and total disability for improved-pension purposes for veterans 65 years of age or older?
HELD: The provision of 38 C.F.R. § 3.326(b), that "[e]vidence solely to establish permanent and total disability will not be required in claims for pension under 38 U.S.C. [§] 1521 if the veteran has attained the age of 65 years," is inconsistent with the will of Congress as expressed in section 8002 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508. That statute eliminated for improved-pension purposes in claims filed after October 31, 1990, the presumption of permanent and total disability for persons 65 years of age or older. The referenced provision of section 3.326(b) is therefore null and of no legal effect. |
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