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Veterans’ Case Law: Wingard v. McDonald

09/15/2015

Wingard v. McDonald, 779 F.3d 1354 (Fed. Cir. Mar. 10, 2015)

38 U.S.C. § 7252(b); REVIEW OF VA’S RATING SCHEDULE

Held: 38 U.S.C. § 7252(b) precludes CAVC review of challenges to the content of VA’s rating schedule. The Federal Circuit, in turn, is precluded from reviewing the CAVC’s refusal to review a challenge to the rating schedule.

Veteran was service connected for inguinal hernia, rated 0%. After he died, from nonservice-connected conditions, his daughter filed claims for burial plot or internment allowance and burial benefits. She was awarded the burial plot/internment allowance, but denied burial benefits, which are only available to veterans who are “in receipt of compensation” or pension. Because the veteran was rated 0%, VA determined that he was not “in receipt of compensation” and, therefore, not entitled to burial benefits.

At the Veterans Court, the daughter argued that “in receipt of compensation” should be interpreted to include a veteran who was entitled to receive compensation. She also argued that 38 U.S.C. §§ 1110 and 1155 prohibit VA from assigning a 0% rating for a service-connected condition because § 1155 directs VA to create a rating schedule that provides “ten grades of disability and no more” in 10% increments, from 10 to 100. By assigning 0% ratings, VA had created an 11th rating.

The Veterans Court first addressed its jurisdiction to review this issue. The Court found that even though 38 U.S.C. § 7252(a) excludes the rating schedule and any VA action “in adopting or revising that schedule” from its review, the Court was not precluded “from deciding whether the Secretary properly adopted a non-compensable disability rating.” The Court then held that VA’s interpretation of 38 U.S.C. §§ 1110 and 1155 as allowing VA to assign 0% ratings was reasonable. The Court thus concluded that the veteran was not “entitled to compensation” and denied the appeal.

The Federal Circuit disagreed with the Veterans Court’s initial determination regarding its jurisdiction to even review this issue, stating that Congress precluded the Court from reviewing VA’s rating schedule, and that § 7252(b) “squarely precludes the Veterans Court from determining whether the schedule, by including a 0% rating, substantively violates statutory constraints.” The Federal Circuit noted that this case did not involve a constitutional challenge, a question of regulatory interpretation related to the schedule, or a purely procedural challenge, but rather “[i]t involves a substantive challenge to the schedule as conflicting with the statute.” As such, the Court stated that “our precedent is clear in giving effect to the statutory language: § 7252(b) ‘broadly preclud[es] judicial review of the contents of the disability rating schedule.’” (citing Wanner v. Principi, 370 F.3d 1124, 1130 (Fed. Cir. 2004)). The Court reiterated that this statute “‘removes from the Veterans Court’s jurisdiction all review involving the content of the rating schedules and the Secretary’s actions in adopting or revising them.’” The Court further concluded that the statute specifically barred its review of the Veterans Court’s refusal to review the rating schedule and that the “statutory scheme” – including §§ 502, 7252, and 7292 – “’consistently excludes from judicial review all content of the rating schedule.’” Id. The Court reiterated that it is precluded “from reviewing, on appeal from the Veterans Court, a substantive statutory challenge to [VA] rating-schedule regulations.” 

Category: Veterans’ Law