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National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs

Regulation restricting award of dependency and indemnity compensation benefits to survivors of deceased veterans remanded to agency for further consideration because revised regulation was inconsistent with another regulation that interprets a virtually identical veterans' benefits statute; agency failed to explain its rationale for interpreting virtually identical statutes in conflicting ways.

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Appealed from: Department of Veterans Affairs

National Organization of Veterans’ Advocates, Inc., (“NOVA”), Disabled American Veterans (“DAV”), and Paralyzed Veterans of America (“PVA”) (collectively, “petitioners”), challenge the validity of a regulation promulgated by the Department of Veterans Affairs, 38 C.F.R. � 3.22 (2000). *fn1 That regulation, as revised in January 2000, restricts the award of dependency and indemnity compensation (“DIC”) benefits to survivors *fn2 of deceased veterans to cases where the veteran (during his or her lifetime) had established a right to receive total service-connected disability compensation for the period of time required by the governing statute, 38 U.S.C. � 1318 (1994), *fn3 or would have established such right but for clear and unmistakable error by the Department of Veterans Affairs in adjudicating the veteran’s claim. We conclude that the revised regulation is inconsistent with another regulation, 38 C.F.R. � 20.1106, that interprets a virtually identical veterans’ benefits statute, 38 U.S.C. � 1311(a)(2). We further conclude that the agency has failed to explain its rationale for interpreting these virtually identical statutes in conflicting ways. We therefore remand this case to the Department of Veterans Affairs for further consideration.

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