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NOVA vs VA (Federal Circuit) decided Sep. 20, 2022

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broncovet

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   This is a "W" for Veterans!

 Some may know that Chevron Deference, now called Auer (vs Robbins) deference, allows the VA to "interpret" its own regulations unless they are "arbritrary and capricious".  

   Auer deference "hurts" Veterans, because the VA gets to decide how they interpret their own regulations, and, this means they interpret them in the least (Veteran favorable) way.  In other words, in a tie, the Veteran loses his benefits.  Its not supposed to be that way.  

   This new decision limits VA in use of the Auer deference, and called its interpretation "Arbitrary and Capricious".  

   Hats off to NOVA (National Organization for Veterans Advocates) for forcing VA to do what they dont want to do:  Interpret regulations in the most Veteran favorable way.  

    Here is the decision:  https://cafc.uscourts.gov/opinions-orders/20-1321.OPINION.9-20-2022_2006116.pdf

    Because the Federal circuit calls it "Arbitrary and capricious", the VA cant keep doing so.  

   In a nutshell, the Vetren had a partial knee replacement, and alleged the regulation stated "Knee replacement" but did not specify partial or total, so the tie should go to the Veteran.  

   The VA even "made up" a new regulation, amending it to say "Total Knee replacement" to the exclusion of partial knee replacement.  The Federal circuit essestially said, no.  THis is a "post hoc rationalization".  

    This means an "excuse for denying the Veteran" which does not fly.  Read it for more information.  

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  • Content Curator/HadIt.com Elder

Arbitrary and capricious conduct is willful and unreasonable action without consideration or regard for the facts and circumstances. Doesn't that happen every time the VA makes a hasty decision without bothering to review the facts, lay statements, and evidence? 

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I also used the Arbitrary and capricious wording in my 4 CUE contentions that I filed with the VARO in 2000 and eventually won at the CAVC vet court in 2005 that stated the VARO committed due process error in failing to adjudicate my inferred TDIU claim before 1998 and ordered the VARO to do so thus giving me an earlier effective date.

I represented myself pro se because of earlier very poor VSO assist in 1985.

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  • Content Curator/HadIt.com Elder

@Dustoff1970I never used that terminology specifically, but definitely will at my BVA appeal hearing. The DRO verbally told me the VA committed a clear CUE, but the VA's QA team returned a decision which omitted most of what we discussed and ignored many contentions. I will bring up Evans v. Shinseki (2007) and this decision to deliver this point...

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