AGO Opinion 98009
County Veterans Service Officers; Private Financial Enterprises
DATE: February 4, 1998
SUBJECT: County Veterans Service Officers; Private Financial Enterprises
REQUESTED BY: Keith Fickenscher, Director Nebraska Department of Veterans' Affairs
WRITTEN BY: Don Stenberg, Attorney General
Lauren L. Hill, Assistant Attorney General
You have requested an opinion from this office regarding
the extent to which a county veterans service officer may engage in
a private financial enterprise to provide certain services to
veterans residing outside of the service officer's assigned county.
We note that this opinion request is prompted by a specific inquiry
which you have received from a county veterans service officer
["CVSO"]. The Nebraska Attorney General does not provide legal
advice to private citizens. See Op. Att'y Gen. No. 95-001 (January
3, 1995); Op. Att'y Gen. No. 157 (December 20, 1985); 1977 Op. Att'y
Gen. 217 (Opinion No. 144, dated November 15, 1977). You have,
however, indicated that the outcome of our opinion would potentially
impact upon other county service officers who may decide to pursue
the same course of action as that being inquired of herein. Under
that circumstance, we have determined that addressing your inquiry is
On September 17, 1997, the Buffalo County Veterans Service
Officer requested a legal opinion from the Buffalo County Attorney as
to whether the CVSO was legally able to establish a "private
practice" in order to provide certain services to veterans residing
outside of Buffalo County. Via his October 7, 1997, opinion, the
Buffalo County Attorney concluded that the CVSO was prohibited from
providing, on a private basis, those services which the CVSO was
being paid to provide as a public officer.
Unsatisfied with the county attorney's legal opinion, the
CVSO subsequently requested that an opinion be rendered on this issue
by the Nebraska Accountability and Disclosure Commission. In
response to the CVSO request, a staff opinion was issued by the
Commission's legal counsel on January 2, 1998.
Since we agree, in pertinent part, with the conclusions
asserted in the staff opinion which has already been issued, we take
this opportunity to set forth several of those conclusions. The
question at issue in the opinion was whether state law would prohibit
a CVSO from charging a fee for serving as a veteran's accredited
"agent" before the U.S. Department of Veterans' Affairs so long as
the veteran is not otherwise eligible for the CVSO's official
services. Summarized, the opinion concluded as follows:
1. The CVSO would be prohibited from directing county
personnel or using county property to engage in activity
associated with the private enterprise;
2. The CVSO could not use confidential information,
obtained through public employment, in connection with the
3. The CVSO, while engaged in public duties, could not
refer individuals to a private enterprise;
4. The CVSO could not perform privately for any person for
pay any service which is required to be provided as part of
the CVSO's public duties.
What remains at issue is whether representation, on behalf
of a veteran, as an accredited "agent" for work on a federal benefit
claim is work that a CVSO would perform as part of his or her public
duties. Resolution of the issue requires a review of applicable
state and federal statutes.
Statutes Governing County Veterans Service Officer Duties.
The Nebraska Department of Veterans' Affairs has been
designated as the state agency charged with advocacy efforts on
behalf of veterans. Neb. Rev. Stat. § 80-401.02 (Supp. 1997). To
assist the Department in the performance of its duties, each county
board is required to appoint a county veterans service committee.
Neb. Rev. Stat. § 80-406 (1996). Each county veterans service
committee "shall cooperate with and assist the Department of
Veterans' Affairs in the performance and discharge of its duties and
functions." Neb. Rev. Stat. § 80-407 (Supp. 1997). In order to
provide that assistance to the state department, the county service
committees are required to appoint a county veterans service officer
["CVSO"]. Neb. Rev. Stat. § 80-407 (Supp. 1997). County Boards are
authorized to appoint a CVSO to serve more than one county. Id.
The CVSO works as a permanent, full-time employee of the
county, unless the county board and the county service committee have
determined that the work required by the CVSO may be adequately
provided on a permanent part-time basis. Id. In addition to their
general duty to assist the Nebraska Department of Veterans' Affairs,
the CVSOs are specifically required by statute to:
intake, process, and forward from any veteran an application
for admission to one of the state veterans' homes (Neb. Rev.
Stat. § 80-317 (Supp. 1997));
receive, process, and forward to the Nebraska Veterans' Aid
Fund applications from any eligible person whose residence is
nearest to the CVSO (Neb. Rev. Stat. § 80-401.03 (Supp. 1997));
intake, process, and forward any application for a waiver of
tuition benefit (Neb. Rev. Stat. § 80-412 (1996)).
CVSOs may also be required to perform other specific functions
pursuant to personnel policies or job descriptions which have been,
or may be, established by the county employers.
Representation of Veterans Regarding Federal Benefit Claims.
Veterans are entitled to many benefits under programs
administered by the U.S. Department of Veterans' Affairs ["USVA"].
Once a dispute regarding a particular veteran's benefit arises,
federal law generally prohibits any individual from acting as "an
agent or attorney in the preparation, presentation, or prosecution of
any claim under laws administered by the [USVA] unless such
individual has been recognized for such purposes by the Secretary [of
the USVA]." 38 U.S.C. § 5901 (1991).
An individual may be "recognized" to pursue veterans'
claims on a regular basis before the USVA in one of three ways.
First, the individual can pursue recognition as an accredited member
of one of the organizations approved by the USVA (e.g., American
Legion; Veterans of Foreign Wars; Disabled American Veterans; etc).
38 U.S.C. § 5902 (1991); 38 C.F.R. § 14.628 (1997). Second, the USVA
may recognize any individual as an accredited "agent" for purposes of
pursuing veterans' benefits claims. 38 U.S.C. § 5904 (1991 & Supp.
1997); 38 C.F.R. § 14.629 (1997). Finally, the USVA may recognize
licensed attorneys to pursue claims. Id.
Either an accredited representative, or an accredited
agent, or an attorney may initiate a benefit claim on behalf of a
veteran. Those claims are initiated by filing an application before
the USVA. If a claim is denied by the USVA, then an appeal of that
decision may, within one year, be lodged with the Board of Veterans'
Appeals ["BVA" or "Board"]. 38 U.S.C. § 7104 - §7105 (1991). If the
BVA renders a decision adverse to the veteran, then that decision may
be appealed, within 120 days, to the U.S. Court of Veterans Appeals.
38 U.S.C. § 7251 & § 7266(a) (1991 & Supp. 1997). Within 30 days
after the Court renders its determination, a final appeal may be
filed with the U.S. Court of Appeals for the Federal Circuit. 38
U.S.C. § 7292.
Again, the question we have been asked to address is
whether the pursuit, on behalf of a veteran, of a federal benefit
claim entails work that a CVSO would perform as part of his or her
public duties. If a CVSO's public duties already encompass the
pursuit of federal benefit claims, then the CVSO would, under the
"Nebraska Accountability and Disclosure Act," be precluded from
engaging in a private financial enterprise to pursue those claims.
Neb. Rev. Stat. § 49-14,101 (3).
To resolve this matter, we construe the applicable statutes
in accordance with several well-established principles. First, we
are bound by the plain and ordinary meaning of the statutes. Nickel
v. Saline County School Dist., 251 Neb. 762, 559 N.W.2d 9 (1997).
Also, we must construe the statutes in a manner that would achieve
their purpose, rather than in a manner that would defeat the
statutory purpose. Slagle v. J.P. Theisen & Sons, Inc., 251 Neb.
904, 560 N.W.2d 758 (1997). Finally, the pertinent statutes are to
be construed so as to avoid reaching an absurd, unconscionable, or
unjust result. Southeast Rural Fire Dep't v. Neb. Dep't of Revenue,
251 Neb. 852, 560 N.W.2d 436 (1997).
Nebraska statutes do not specify that a CVSO must pursue
federal benefit claim applications on behalf of veterans. State law,
does, however, clearly require county service committees to
"cooperate with and assist the Department of Veterans' Affairs in the
performance and discharge of its duties and functions." Neb. Rev.
Stat. § 80-407 (Supp. 1997). Thus, in addition to duties related to
county aid fund claims, a CVSO also must assist the state agency in
its advocacy functions. As part of those functions, the Nebraska
Department of Veterans' Affairs pursues federal benefit claims before
the USVA, the Board of Veterans' Appeals, and the Court of Veterans
As the state agency already pursues federal claims on
behalf of all Nebraska veterans, it would seem an absurd result to
conclude not only that a CVSO has no duty to assist the State with
that process, but, too, that the CVSOs could engage in a private
financial venture to pursue those claims. We therefore deem it
likely that Nebraska statutes governing the CVSOs, while silent with
regard to this particular issue, would not be construed by a court to
allow service officers to perform, for private financial gain, work
with regard to federal benefit claims. In reaching this
determination, we acknowledge that state law is not clear on the
issue. We do, however, believe that a construction of the governing
federal statutes bolsters our conclusion.
In accordance with 38 U.S.C. § 5902 (1991), a CVSO may, as
part of his or her public duties, represent a veteran before the
USVA, the BVA, and the Court of Veterans Appeals as an accredited
representative of a recognized organization. See also 38 C.F.R. §
14.628 (1997). The "National Organization of County Veterans Service
Officers" is an organization presently recognized by the USVA. Any
CVSO electing to become a member of that organization and satisfying
the organization's requirements for "accreditation" to practice
before the USVA, could file claims before the USVA on behalf of
veterans. No fees may be charged by accredited representatives for
work done on behalf of veterans. 38 U.S.C. § 5902(b)(1991).
Given that CVSOs may, under current law, already pursue
claims before the USVA, we find it would be an absurd construction of
the federal statutes to conclude that a CVSO could, concurrent with
his or her official duties, engage in this endeavor on a private
basis by assessing veterans fees for the same service.
Lauren L. Hill
Assistant Attorney General