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.
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 inVA manuals and other internal publications are substantive or interpretative in determining the effectof such statements.See Morton v. West, 12 Vet. App. 477,482 (1999) (citing caseswhere the CAVC foundmanualprovisions to containsubstantive rules), appeal docketed, No. 99-7191 (Fed. Cir.Sept. 15,1999); Dyment v. West,13Vet. 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 rulemay 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 internalguidelines 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 ProcedureManual [M21-1]are the equivalent of Department regulations."Hamilton, 2 Vet. App. at 675. Provisions of VBAManual M21-1have been found by the CAVC to be substantive when they have established an evidentiarythreshold for a particular type of claim, Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996), aff'd, 124 F.3d228 (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 certainprovisions 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
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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
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