Veteranclaims’s Blog

March 10, 2015

Wingard v. McDonald, No. 2014-7017(Decided: March 10, 2015); FedCir.; 0% Disability Rating; § 1110; § 1155

Excerpt from decision below:

“We hold that Congress has barred the Veterans Court from conducting that review and also has barred this court from itself conducting the review on appeal from a Veterans Court decision. Any such review must be conducted through a direct review of rulemaking determinations under 38 U.S.C. § 502. We therefore vacate the Veterans Court’s judgment and remand for appropriate disposition of the claim in light of our conclusion.”


United States Court of Appeals for the Federal Circuit
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1214, Chief Judge Bruce E.
Kasold, Judge Coral Wong Pietsch, Judge Mary J. Schoelen.
Decided: March 10, 2015
TODD M. WESCHE, LaVan & Neidenberg, PA, Fort
Lauderdale, FL, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by STUART F. DELERY, ROBERT E.
BARRANS, Office of the General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Before MOORE, TARANTO, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
In the ruling before us, the Court of Appeals for Veterans Claims held that 38 U.S.C. § 7252(b) did not preclude it from reviewing whether the Department of Veterans Affairs complied with statutory constraints on the schedule of disability ratings. The Veterans Court then held that the Department had complied. We hold that Congress has barred the Veterans Court from conducting that review and also has barred this court from itself conducting the review on appeal from a Veterans
Court decision. Any such review must be conducted through a direct review of rulemaking determinations under 38 U.S.C. § 502. We therefore vacate the Veterans Court’s judgment and remand for appropriate disposition of the claim in light of our conclusion.

Charlie N. Wingard, a twenty-year veteran of the
United States military, died on September 23, 2005, from
causes unrelated to his military service. His daughter,
Lillie M. Wingard, filed a claim with the Department of
Veterans Affairs for a burial-plot or interment allowance
under 38 U.S.C. § 2303 and for burial benefits under 38
U.S.C. § 2302(a)(1). The Board of Veterans Appeals,
though granting her claim for a plot or interment allowance,
denied her claim for burial benefits, and Ms.
Wingard appealed to the Veterans Court.

Section 2302(a)(1) provides for burial benefits only in
the case of a deceased veteran “who at the time of death
was in receipt of compensation . . . or was in receipt of
pension.” In 1989, the Department assigned Mr. Wingard
a 0% disability rating for a service-connected inguinal
hernia that had been treated and showed no evidence of
recurrence, i.e., the Department found the disability noncompensable.
Mr. Wingard’s disability rating remained at the 0% level throughout his lifetime, so he never received
any disability compensation. Mr. Wingard had no other claims pending at the time of his death and never
received a Veterans-related pension. In the present case, Ms. Wingard argued that the Department nonetheless should grant her the § 2302(a)(1) benefits because (1) “in receipt of compensation” should be interpreted to include a veteran who (at the time of death) was entitled to receive
compensation and (2) Mr. Wingard was entitled to receive compensation because 38 U.S.C. §§ 1110 and 1155 prohibited the Department from assigning him a 0% disability rating after finding that he had a service-connected disability.
The Veterans Court first had to decide whether it was authorized to address the statutory argument underlying Ms. Wingard’s challenge. 38 U.S.C. § 7252(b) excludes from that court’s review “the schedule of ratings for disabilities adopted under section 1155” and “any action of the Secretary [of the Department of Veterans Affairs] in adopting or revising that schedule.” The Veterans Court concluded, however, that § 7252(b) did not preclude it from deciding whether the Secretary properly adopted a
non-compensable disability rating. Wingard v. Shinseki, 26 Vet. App. 334, 339–40 (2013). The court then held that the Secretary’s interpretation—that §§ 1110 and 1155 allow the Department to find some disabilities noncompensable and assign a 0% disability rating—was reasonable. 26 Vet. App. at 346–47. On that basis, the court concluded that Mr. Wingard was not “entitled to receive compensation,” and it denied Ms. Wingard’s claim without having to consider whether, as Ms. Wingard contended, § 2302(a)(1)’s language, “in receipt of compensation,” included “entitled to receive compensation.” 26
Vet. App. at 347.
Ms. Wingard timely appeals the Veterans Court’s decision.
Under 38 U.S.C. § 7292(a), this court has jurisdiction
to entertain her contention that the Veterans Court
misconstrued §§ 1110 and 1155.
Ms. Wingard argues that the Department’s regulations
relating to disability compensation conflict with the
governing statutes. Section 1155 authorizes the Secretary
to adopt a schedule, for rating disabilities, that sets
forth grades of disability based on the average impairment
of earning capacity for a given injury. The resulting
schedule is codified at 38 C.F.R. §§ 4.40–4.150. When a
veteran files a claim for disability compensation under 38
U.S.C. § 1110, the Department uses the schedule to
determine whether and at what rate a veteran is entitled
to compensation. Ms. Wingard’s core challenge is that
regulations creating a “zero-percent” rating violate
§ 1155’s command that the Secretary establish a schedule
“provid[ing] ten grades of disability and no more” in 10
percent increments from 10 to 100 percent as well as
§ 1110’s statement that “the United States will pay to any
veteran thus disabled . . . compensation as provided in
this subchapter.”
Before we may answer that question, however, we
must determine whether the Veterans Court or this court
is empowered by Congress to consider the question at all
in this individual benefits-claim proceeding. We conclude
that Congress has precluded such consideration. Accordingly,
we do not reach the merits of Ms. Wingard’s challenge.
Congress precluded the Veterans Court from “review[
ing] the schedule of ratings for disabilities adopted
under section 1155 . . . or any action of the Secretary in
adopting or revising that schedule.” 38 U.S.C. § 7252(b).
That provision squarely precludes the Veterans Court
from determining whether the schedule, by including a
0% rating, substantively violates statutory constraints.
This case does not involve a constitutional challenge
to the ratings schedule, addressed in Nyeholt v. Secretary
of Veterans Affairs, 298 F.3d 1350, 1354–55 (Fed. Cir.
2002). Nor does it involve “an interpretation of language
in the regulations” related to the schedule, addressed in
Smith v. Nicholson, 451 F.3d 1344, 1346–47 (Fed. Cir.
2006). It also does not involve a purely procedural challenge
to the Secretary’s adoption of schedule regulations,
addressed in Fugere v. Derwinski, 972 F.2d 331, 334–35
(Fed. Cir. 1999). It involves a substantive challenge to
the schedule as conflicting with the statute. For this
challenge, 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 in
toto.” Wanner v. Principi, 370 F.3d 1124, 1130 (Fed. Cir.
The Veterans Court nevertheless concluded that the
§ 7252(b) bar is inapplicable here because Ms. Wingard’s
challenge “does not seek review of what should be a
disability or the appropriate rating to be assigned a
particular disability.” Wingard, 26 Vet. App. at 339–40.
But § 7252(b) speaks broadly and is not susceptible to the
Veterans Court’s interpretation: “The Court may not
review the schedule of ratings for disabilities . . . or any
action of the Secretary in adopting or revising that schedule.”
There is no dispute that Department regulations
defining the schedule’s content are part of “the schedule of
ratings for disabilities.”
The Veterans Court’s ruling is also incompatible with
our precedent. In Wanner, as in this case, the core issue
was “ ‘whether [a] regulation complies with the statutory
authority under which disability compensation is paid.’ ”
370 F.3d at 1127 (citation omitted). We held that
§ 7252(b) applied, rejecting the position that the Veterans
Court “may review ‘whether a particular code is contrary
to law.’ ” Id. at 1130 (quoting Villano v. Brown, 10 Vet.
App. 248, 250 (1997)). “The language of section 7252(b),”
we explained, “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.” Id. Elsewhere, the Veterans Court has
recognized the breadth of that statutory bar. See Byrd v.
Nicholson, 19 Vet. App. 388, 394 (2005) (“[P]ursuant to
section 7252(b) and Wanner, this Court lacks jurisdiction
to review the validity of §§ 4.150 or 3.381(a) in terms of
any inconsistency with 38 U.S.C. § 1110.”). The Veterans
Court erred by failing to apply that principle here. Under
§ 7252(b), whose language has not changed since Wanner,
the Veterans Court could not consider Ms. Wingard’s
statutory challenge.
The question remains whether this court may review
the challenge even though the Veterans Court could not.
We conclude that we may not.
Before 1988, Congress did not generally provide for
judicial review when the Department rejected a veteran’s
claim for benefits. See Henderson v. Shinseki, 562 U.S.
428, ___, 131 S. Ct. 1197, 1201 (2011). In 1988, Congress
enacted the Veterans’ Judicial Review Act, Pub. L. No.
100-687, 102 Stat. 4105 (codified as amended in various
sections of 38 U.S.C.), creating the Veterans Court and
generally authorizing it to review claim denials, 38 U.S.C.
§ 7252; Henderson, 131 S. Ct. at 1201. As already discussed,
however, the statute creates an exception that
precludes the Veterans Court from reviewing the statutory
challenge to the ratings schedule at issue here.
The 1988 Act also provided two means for this court
to review Department actions related to benefits. First, in
38 U.S.C. § 7292, Congress allowed either party to appeal
a decision of the Veterans Court to this court. In subsection
(a), however, Congress specifically barred our review
of “a [Veterans Court’s] refusal to review the schedule of
ratings for disabilities adopted under section 1155,” see 38
U.S.C. § 7292(a)—a refusal that § 7252(b) requires of the
Veterans Court. Second, in 38 U.S.C. § 502, Congress
provided that this court, without Veterans Court involvement,
could directly review Department actions in adopting,
revising, or refusing to adopt or revise regulations,
and Congress invoked the procedures and standards of
the Administrative Procedure Act (APA) for that review.
Having invoked the APA, Congress added for clarity that,
when review of regulations takes place under chapter 72
(in the Veterans Court under § 7252 or in this court under
§ 7292), as is common, the standards of chapter 72 and
not the APA govern the review. § 502 (third sentence;
unchanged since 1988). As enacted in 1988, however,
§ 502, like § 7292(a), contained an express exception for
“an action relating to the adoption or revision of the
schedule of ratings for disabilities adopted under section
1155.” § 502 (first sentence; 2006).
In 2004 we decided Wanner under those provisions.
We held, considering §§ 7252, 7292, and 502, that “the
statutory scheme thus consistently excludes from judicial
review all content of the ratings schedule.” 370 F.3d at
1129. In particular, we concluded, based on the statutory
structure and specific exclusions, that this court was
barred by § 7292(a) from reviewing, in appeals from the
Veterans Court, what the Veterans Court was barred by
§ 7252(b) from reviewing in its proceedings. Id.
In 2008, Congress modified the statutory scheme, but
only a portion of § 502. Congress removed the exception
for “an action relating to the adoption or revision of the
schedule of ratings for disabilities adopted under section
1155 of this title” from the first sentence of § 502, which
now broadly authorizes direct review of Department
regulations, including schedule regulations. But Con

gress left unchanged the § 7292(a) bar—which, we conclude,
continues to have the review-precluding effect in
appeals from the Veterans Court we found in Wanner.
Congress did not disturb the specific statutory language
underlying the specific Wanner result precluding
§ 7292(a) review. Moreover, nothing in the language of
§ 502 modifies § 7292(a) or its preclusion of review of
particular regulations. The newly general first sentence
of § 502 merely provides for direct review of Department
regulations; it does not address § 7292 review. And the
rest of § 502 was not changed in 2008. Only the third
sentence says something related to § 7292, as it did before
2008. But it merely refers to what standards govern
when regulations are reviewed under § 7292, avoiding a
possible confusion caused by the general invocation of
APA standards in § 502. Jackson v. Brown, 55 F.3d 589,
591 (Fed. Cir. 1995). That is perfectly consistent with,
and suggests no overriding of, § 7292(a)’s preclusion of
review of particular regulations.
To treat the 2008 amendment as removing the prohibition
on this court’s review of the rating schedule when
reviewing a Veterans Court decision also would produce a
distinctly odd result: that this court could “review,” on
appeal from the Veterans Court, a Department action
that the Veterans Court cannot review. We do not say
that such a result is inconceivable, or even unprecedented
in some contexts. Cf. Nyeholt, 298 F.3d at 1354 n.4 (suggesting,
without deciding, that this court might review
constitutional challenges to the rating schedule even if
the Veterans Court could not). And we note that the
language of § 7292(a)—barring this court from reviewing
“a refusal [of the Veterans Court] to review the schedule
of ratings”—is a bit indirect as a statement of preclusion
of review of schedule regulations. Nevertheless, the
sensible reading of § 7292(a), in context, is the one adopted
in Wanner, considering § 7252(b)’s bar on Veterans
Court review and the basic principle that our review
under chapter 72 is of Veterans Court decisions. See
§ 7292(a) (“any party to the case may obtain review of the
decision” of the Veterans Court); id. § 7292(c) (this court
has “exclusive jurisdiction” to challenges “brought under
this section,” i.e., challenges involving the review of
Veterans Court decisions). Because this court generally
reviews only issues already reviewed by the Veterans
Court, there was no need for Congress to specify with
greater directness that this court may not review the
rating schedule on appeal after it precluded the Veterans
Court from engaging in such review. And given the pre-
2008 background of no judicial review of schedule regulations
at all, the natural reading of a limited change to
§ 502 (changing nothing in the statutory language of
chapter 72) is that Congress did not modify this court’s
review under chapter 72.
This conclusion, finally, comports with the extensive
discussion by the relevant Senate Committee in its 2008
report on what became the statutory change. The original
legislative proposal to modify the statutory scheme would
have amended § 7252(b) to allow the Veterans Court (and
by extension this court) to review challenges to the rating
schedule in the chapter-72 context. See S. 2737, 110th
Cong. § 2 (2008). The Senate Committee explained that
“without a change to current law, any changes to the
rating schedule regulations would be shielded from review,”
S. Rep. No. 110-449, at 13—thus confirming the
unavailability of Veterans Court review. In response to
the original proposal, however, Department witnesses
raised concerns that providing for judicial review under
chapter 72 would “increase litigation in [the Veterans
Court] and result in piecemeal review of the rating schedule.”
Id.; see also Wanner, 370 F.3d at 1130 (highlighting
similar concerns before passage of the original Act). The
Senate Committee therefore altered the original proposal
to instead leave chapter 72 unchanged and amend only
§ 502, newly allowing direct review of schedule-related
agency actions in this court in lieu of review in the Veterans
Court. See S. Rep. No. 110-449, at 13–14. That
amendment ultimately became law.
In short, Congress in 2008 left in place the existing
provisions governing judicial review under chapter 72.
Those provisions, we held in Wanner, preclude this court
from reviewing, on appeal from the Veterans Court, a
substantive statutory challenge to Department rating schedule
regulations. We remain precluded from doing so
For those reasons, we vacate the Veterans Court decision
and remand for actions consistent with this opinion.
No costs.

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