Case law refers to precedential (sets a precedent)1 opinions by federal courts of appeal, which for veterans disability claims are these three courts:
Precedential opinions by these courts are binding (must be followed) by lower courts and the Board of Appeals for Veterans Claims.
The National Organization of Veterans Advocates (NOVA) presented the Court with two questions, the first of which was:
“Whether this Court has jurisdiction under 38 U.S.C. § 502 to review a generally applicable interpretive rule that the Department of Veterans Affairs (VA) promulgates through its Adjudication Procedures Manual.”5
In their decision to grant en banc review, the Federal Circuit ordered the parties to submit briefs on two questions, one of which is very similar to the question posed by NOVA:
Whether this court has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals, and whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017).
Briefly, NOVA (and other veterans organizations) argue that VA often creates or changes rules that constitute "substantive rules of general applicability"4 and therefore should be published first as a proposed rule in the Federal Register, but are instead published in the M21-1 Adjudication Procedures Manual.
The M21-1 Adjudication Procedures Manual is public, i.e., it is published online, but additions or changes to the M21-1 Manual are not subject to a three-step process as is the case for rules published in the Federal Register:
(i) Proposed Rule published in the Federal Register;
(ii) Public comments invited for 60 days;
(iii) Final Rule published in the Federal Register with responses to public comments.
Publication in the Federal Register is required for "rules" that fall under 5 U.S.C. § 552(a)(1), but not 5 U.S.C. § 552(a)(2).
NOVA argues that many additions or changes to the VBA's M21-1 Adjudication Procedures Manual are actually "rules" as defined in Title 5 of the U.S. Code.
The Department of Veterans Affairs argues, among other points, that the M21-1 Manual falls under 5 U.S.C. § 552(a)(2)(C): "administrative staff manuals and instructions to staff that affect a member of the public ...."
Then there are these definitions, in closely related sections of Title 5.
5 USC § 551(4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing ....
5 USC § 551(5) “rule making” means agency process for formulating, amending, or repealing a rule ....
See also Rule making, 5 U.S.C. § 553
When you read these various definitions and the associated statutes (U.S. Code), it becomes clear—at least to this layman—that the statutes' definitions seem like they can be interpreted either way, i.e., in support of the agency (VA) or the plaintiffs (NOVA).
Wow. If you think attorneys who argue cases like this one—and the judges who must decide these knotty legal questions—have an easy job, think again!
Please see the excellent Fed Circuit Blog (FedCircuitBlog.com) for a more detailed summary and the procedural history of National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs (No. 20-1321).
This precedential, en banc2 Federal Circuit decision clarified the VA's obligation to demonstrate a medical examiner's competence, if a veteran raises the competency issue before the Board of Veterans Appeals.
The Court's opinion has three implications for VA examiners. [Read more ...]
This section lists historically important court opinions in veterans law.
Gilbert v. Derwinski (1990) is a Court of Appeals for Veterans Claims (CAVC) case decided in 1990, soon after the Court was created by Congress. The case is important for two reasons. [Read more ....]
1.Oxford English Dictionary, 3rd ed. (Oxford, UK: Oxford University Press, March 2007), https://oed.com/view/Entry/149579 ("precedential, adj. 1. Of the nature of or constituting a precedent; providing a guide or rule for subsequent cases.")
2. Oxford English Dictionary, 3rd ed. (Oxford, UK: Oxford University Press, September 2017), https://oed.com/view/Entry/56701627 ("en banc, adv. and adj., Law [chiefly U.S.]. A. adv. With all ... of the judges of a court present; before or by the full bench. A sitting en banc is typically held by an appeal court in order to review decisions made by a panel of its members. Some courts [e.g. the Supreme Court of the United States] traditionally hear all cases referred to them en banc.")
3. National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, petition for review pursuant to 38 U.S.C. Section 502, on petition for hearing en banc (No. 20-1321), Order, petition granted (Fed. Cir. May 6, 2020).
5. National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs (No. 20-1321), petition for review of changes to Department of Veterans Affairs Manual M21-1 pursuant to 38 U.S.C. § 502, petition for initial hearing en banc, filed by petitioner on January 27, 2020.
I highly recommend the Veterans Law Library, which is the best source of continually updated veterans law information—law review articles, case law, legislative proposals and new statutes, VA regulatory changes, and more.
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