M21-1Mr, Law?

[FirstOldOne]

I am asking if M21-1MR is law?

If not then how can it be used to trump what is stated in a CFR?

[paul554]

The code of federal regulations is statutory in nature and it binds the VA. The M21-1MR is an internal policy regulation. If the manual is in contrast with the law, then it must secede to the law. Hence, you can not trump the CRF or USC with the internal regulation.

[Tbird]

VA Law, VA Code, VA Manuals

The U.S.C. is the law, the C.F.R. is how they interpret the law and last but certainly not least is the V.A. adjudication manuals that is how they apply the law. The section of the law that covers the veterans benefits is Title 38 in the U.S.C. in the C.F.R. is usually written 38 C.F.R. or something similar, V.A. frequently requested manuals are listed below.

[Berta]

I have used M21-1MR to 'trump', their flawed applications of 38 CFR.in many of my claims.

I used one part of M21 (their doctor;s version) to succeed in my FTCA wrongful death case.

M21-1MR is available on line. I have never searched for the doctor's version.

I found the 2 page doctor's M21 instruction as to handling VA employees with emergencies but ( all I found was 2 pages) after spending many hours in a law library years ago, looking for something else.

I felt like I had found the Holy Grail, at first . It was part of my FTCA and 1151 claims evidence..

As I drove home however, I realized this is M21 statement could cause negligence./malpractice, if followed through in any similar VA emergency situation.involving a veteran who is also employed by the VA.

I hope they changed that policy.

Edited March 7, 2015 by Berta

[free_spirit_etc]

http://www.veteranslawlibrary.com/files/CAVC_cases/2011/Castellano_09-3386.pdf

Given this unique history, it is not a surprise that substantive rules promulgated before

the APA might be contained in the M21-1 or a directive, letter, or other document. See Buzinski

v. Brown, 6 Vet.App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.

1982), held that "VA handbooks, circulars, and manuals" may have the "force and effect of law"

if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990) (the

placement of a rule "in a procedural manual cannot disguise its true nature as a substantive

rule"), aff'd, 972 F.2d 331 (Fed. Cir. 1992).

provision or other VA directive that plainly is erroneous or inconsistent with regulation.

Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) ("VA interpretations of its

own regulations in its Adjudication Procedures Manual [M21-1] are 'controlling' as long as they

are not 'plainly erroneous or inconsistent with the regulation.'" (citing Thun v. Shinseki, 572 F.3d

1366, 1369 (Fed. Cir. 2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas,

525 F.3d at 1197 (holding that an M21-1 inconsistent with regulation confers no rights on

claimant), and Fournier, 23 Vet.App. at 487-88 (discussing Haas), with Cohen v. Brown,

10 Vet.App. 128, 139 (1997) ("Where the Manual M21-1 and the regulation overlap, the Manual

M21-1 is irrelevant . . . . except where the Manual M21-1 is more favorable to the claimant.").

Edited April 1, 2015 by free_spirit_etc