Opinions, Please.

[Guest Morgan]

Sorry about the strange formatting. I don't know why it's doing it.

I would like to hear anyone's opinion about this. Is the following M21-1 statement enforceable as a substantive rule, according to the findings in the OGC-2000 decision below? (Try reading mostly the underlined and colored parts.)

M21-1, Part VI , Change 86 Erratum, April 19, 2002

a. General. If entitlement to SMC under 38 U.S.C. 1114 exists on account of the loss, or loss of use, of both lower extremities, the veteran also meets the requirements for specially adapted housing under 38 U.S.C. 2101. Conversely, entitlement to specially adapted housing because of loss or loss of use of both lower extremities also meets the requirements for corresponding SMC entitlement.

VAOPGCPREC 6-2000 says

2. Section 7104© of title 38, United States Code, provides that, [t]he Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, [1] and the precedent opinions of the chief legal officer of the Department." See also Young v. Brown, 4 Vet. App. 106, 109 (1993) (VA may not ignore its own regulations).

Section 19.5 of title 38, Code of Federal Regulations, provides that, "[t]he Board is not bound by Department manuals, circulars, or similar administrative issues" in its review of VA decision. The question which must therefore be addressed is whether the provisions ...of the VBA Manual M21-1,... constitute "regulations" for purposes of 38 U.S.C. § 7104©.

3. In many cases, courts have concluded that internal agency issuances, such as manuals and circulars, designed to convey instructions to personnel within an agency concerning procedure and practice, did not constitute binding rules. See, e.g., Schweiker v. Hansen, 450 U.S. 785, 789-90 (1981) (Social Security claims manual); Hoffman v. United States, 894 F.2d 380, 384 (Fed. Cir. 1990) (Air Force regulation); Horner v. Jeffrey, 823 F.2d 1521, 1529-30 (Fed. Cir. 1987) (Federal personnel manual); Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.), cert. denied, 459 U.S. 907 (1982) (VA circulars and handbook). However, certain provisions of VBA Manual M21-1 have been found to contain binding substantive rules. E.g., Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992). Some courts have focused on the intent of the promulgator in inquiring whether an agency statement not published in the Federal Register is a binding rule. See, e.g., Public Citizen, Inc. v. U.S. Nuclear Regulatory Comm'n, 940 F.2d 679, 681-82 (D.C. Cir. 1991).

However, decisions by the CAVC have emphasized the issue of whether the statements in VA manuals and other internal publications are substantive or interpretative in determining the effect of such statements. See Morton v. West, 12 Vet. App. 477, 482 (1999) (citing cases where the CAVC found manual provisions to contain substantive rules), appeal docketed, No. 99-7191 (Fed. Cir. Sept. 15, 1999); Dyment v. West, 13 Vet. App. 141, 146 (1999).

4. A substantive rule is one which "effect a change in existing law or policy or which affect individual rights and obligations." Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998). Such a rule "'narrowly limits administrative action.'" Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) (quoting Carter v. Cleland, 643 F.2d 1, 8 (D.C. Cir. 1980)), aff'd, 972 F.2d 331 (Fed. Cir. 1992); Morton, 12 Vet. App. at 481-82. A rule may be considered substantive where it impinges on a benefit or right enjoyed by a claimant or where its application directly affects whether a claimant's benefits are to be granted, denied, retained, or reduced....

5. As noted by the CAVC, "substantive rules may confer enforceable rights, while internal guidelines and interpretive statements of a federal agency . . . cannot." Morton, 12 Vet App. at 482 (citing cases). The CAVC has held that, "ubstantive rules . . . in the VA Adjudication Procedure Manual [M21-1] are the equivalent of Department regulations." Hamilton, 2 Vet. App. at 675. Provisions of VBA Manual M21-1 have been found by the CAVC to be substantive when they have established an evidentiary threshold for a particular type of claim, Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993), appeal dismissed, 26 F.3d 137 (Fed. Cir. 1994); Hamilton, 2 Vet. App. at 674-75, or necessarily limited administrative action by establishing a prerequisite for establishment of service connection, Earle v. Brown, 6 Vet. App. 558, 562 (1994). The CAVC has also held that certain provisions of VBA Manual M21-1 were substantive when they have governed which rating criteria will be applied in a particular claim. Fugere, 1 Vet. App. at 107

Edited February 26, 2006 by Morgan

[Guest Berta]

If their decision overlooks VA case ( I would stick with any precedential CAVC decisions) this would be a good part of your rebuttal -for evidence.

You could refer to and attach the actual CAVC decision (if it is precedential)

or copy and paste from the CAVC web site the actual link, the case Title and then paste in that part of the decision right into your statement with quotes-

or- as this states- whatever is contained in any M21-1 regulation that directly refers to VA case law or established regulations can also be used to rebutt them too.

Unfortunately -" enforceable as a substantive rule"---

is often a case of beating them over the head with their own regs-

We often have to Forcefully demand proper application of the regs when we rebutt a denial.

Edited February 26, 2006 by Berta

[Guest Morgan]

Berta,

This came from a legal decision of some sort, but I'm not sure what it is or how important it is in the whole scheme of things. I have seen you point to cases like it several times since I've been on hadit. This is part of the document heading:

May 19, 2000 VAOPGCPREC 6-2000

From: General Counsel (022)

This document stated many cases that seemed to be very important to all claims, since VA doesn't go by it's own regulations and published internal procedures, manuals, etc. Is this source important, or just another willy nilly maneuver in legal or political musings?

Carrie

[Josh]

Morgan,

This is very good information to have at ones disposal your review was also good Berta.

Thanks

With regards to my claim, I need to do now is to get them to accept information already given to them.

[Guest Morgan]

Josh,

I hope it helps in some way in your case. You are so right, getting them to accept the evidence we work so hard to get is another unnecessary battle. Problem is, to do that they must READ.

If I can use this to enforce their M21-1 about SMC and specially adapted housing, this will win all of my husband's last eight claims that were denied. I certainly am going to try it.

If you need the link to this entire document let me know and I'll send it. If I can help you in any other way, let me know. :P

[Guest Berta]

Carrie- any General Counsel opinion that can , in any way, support a claim is excellent evidence to attach to any rebuttal-

their search button can get to specific opinions and many vets use CAVC but then again- a counsel opinion might help even more than that-

Example: I used OG Pres Op # 30-97 to rebutt a statement VA made in a 1997 decision never appealed, which I filed as a CUE claim and was told they have been working on this claim for about three weeks.

VA's point was the veteran was not entitled to SMC for his Sec 1151 disabilities totalling well over 100% on top of his 100% direct SC for PTSD.

But they had never documented in the Sec 1151 award that these WERE 1151 disabilities.Just listed as NSC.

Twice the VA, since I filed this CUE , in letters to me stated "he was not eligible under any circumstance for SMC" but never mentioned the CUE claim. A recent matter ,however,brought this claim fully to their attention-

The OG Pres op clearly shows that 1151 disabilities are eligible for SMC.

A letter I got from CHAMPVA-from a VARO error-in 2004- clearly states that they were in fact 1151 disabilties.

The CHAMPVA problem was awful for a few days but got resolved- getting me hard copy from CHAMPVA that VA had stated Rod had 100% in 1151 disabilities.

CHAMPVA had his 100% SC P & T award so it looked odd to them--2 award letters-but it was quickly resolved-

This problem upset me at the time but that CHAMPVA letter was Golden!

I used that letter as well as the Pres op to support my CUE claim.

The pres op was based on the proper level of SMC for a 1151 vet -as I recall-not a question of his eligibility at all-

and certainly is undisputable evidence of VARO's clear and umistakable error in my case.

I found this opinion in a few minutes but a similiar CAVC or BVA statement might have taken hours. Depends on the info one is looking for.

Edited February 27, 2006 by Berta

[Guest Morgan]

I think they have real problems with doing math. These complex cases can cause the old brain to get a workout! And a young one for that matter. :P