Excerpt from decision below:
“Both cases in this consolidated appeal involve the correct legal standard for assessing an increase in disability of a non-service-connected condition “proximately due to or the result of a service-connected disability”2 in a secondary-service-connection context.
The merits issue for panel consideration arises from Board instructions to VA examiners in both cases that “aggravation” of a non-service-connected condition required a “permanent worsening” of that secondary condition.
The Secretary apparently imported this requirement from law pertaining to the presumption of aggravation for conditions preexisting service.3 The Secretary has incorporated the “permanent worsening” requirement into the VA Adjudication Procedures Manual, effective November 30,
2017.4 The Court concludes that the Secretary’s imposition of the “permanent worsening” standard is an impermissible attempt to add requirements that appear in neither the enabling statute5 nor in
the implementing regulation6 for secondary service connection. Therefore, the Court will set aside the Board decisions in the appeals of both Mr. Ward and Mr. Neal, and remand their secondary service-connection claims for additional development and readjudication under the proper legal standard.”
========================
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2157
LARRY M. WARD, APPELLANT,
AND
NO. 17-1204
GABRIEL S. NEAL, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued February 1, 2019 Decided June 14, 2019)
Casey Connelly and Laurel Fresquez, of Jamaica Plain, Massachusetts, argued for the appellants.1 Lavinia A. Derr and Ronen Z. Morris, both of Washington, D.C., argued for the appellee.
Alyce E. Galoski, of Providence, Rhode Island, for appellant Ward.
Emma L. Peterson and Zachary M. Stolz, of Providence, Rhode Island, and Daniel L. Nagin
and Elizabeth R. Gwin, of Jamaica Plain, Massachusetts, were on brief for appellant Neal.
Meghan Flanz, Interim General Counsel, with whom Mary Ann Flynn, Chief Counsel;
James B. Cowden, Deputy Chief Counsel; and Lavinia A. Derr, Appellate Attorney, all of
Washington, D.C., were on brief for the appellee in No. 16-2157. James A. Byrne, General
Counsel, with whom Mary Ann Flynn, Chief Counsel; Richard Daley, Deputy Chief Counsel; and
Stuart Anderson, Appellate Attorney, all of Washington, D.C., were on brief for the appellee in
No. 17-1204.
Before DAVIS, Chief Judge, and PIETSCH and GREENBERG, Judges.
DAVIS, Chief Judge, filed the opinion of the Court. GREENBERG, Judge, filed an opinion concurring in part and dissenting in part.
1 These students are members of the Veterans Legal Clinic of the Legal Services Center of Harvard Law
School, which is co-counsel for the appellants. The Court expresses its appreciation for their contribution to the Court’s
consideration of this matter.
2
DAVIS, Chief Judge: Both cases in this consolidated appeal involve the correct legal standard for assessing an increase in disability of a non-service-connected condition “proximately due to or the result of a service-connected disability”2 in a secondary-service-connection context.
The merits issue for panel consideration arises from Board instructions to VA examiners in both cases that “aggravation” of a non-service-connected condition required a “permanent worsening” of that secondary condition.
The Secretary apparently imported this requirement from law pertaining to the presumption of aggravation for conditions preexisting service.3 The Secretary has incorporated the “permanent worsening” requirement into the VA Adjudication Procedures Manual, effective November 30, 2017.4 The Court concludes that the Secretary’s imposition of the “permanent worsening” standard is an impermissible attempt to add requirements that appear in neither the enabling statute5 nor in the implementing regulation6 for secondary service connection. Therefore, the Court will set aside the Board decisions in the appeals of both Mr. Ward and Mr. Neal, and remand their secondary service-connection claims for additional development and readjudication under the proper legal standard.
Additionally, there is a motion before the Court to certify a class of “veterans who are or
will be subject to the Secretary’s unlawful ‘permanent worsening’ standard for deciding whether a
service-connected disability has aggravated a secondary disability.”7 Because this is a precedential
opinion, which should have full effect throughout VA, the Court will deny the class certification
motion at this time.
I. BACKGROUND
U.S. Navy veteran Larry M. Ward is service connected for femur and knee disabilities
resulting from an in-service accident. His knee condition eventuated in a total knee replacement.
2 38 C.F.R. § 3.310(b) (2018).
3 See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (2018).
4 VA ADJUDICATION PROCEDURES MANUAL (M21-1), pt. III, subpt. iv, ch. 6, § B(5)(a).
5 See 38 U.S.C. § 1110.
6 See 38 C.F.R. § 3.310.
7 Motion for Class Certification at 1.
3
He now seeks service connection for a bilateral hip condition that he believes has resulted, at least in part, from stress caused by his service-connected disabilities.
U.S. Army veteran Gabriel S. Neal is service connected for a left knee disability that has resulted in several surgeries, also culminating in a full knee replacement. He now seeks service connection for a low back disability that he believes has resulted from favoring his serviceconnected
left knee.8
The records in both cases raise an identical issue on appeal. In Mr. Ward’s case, a Board remand instructed VA to
[o]
btain a VA medical opinion as to whether it is at least as likely as not (50 percent
or greater probability) that the [v]eteran’s degenerative joint disease of the hips was
caused or aggravated (permanently increased in severity beyond the natural
progress of the disorder) by the service-connected right knee total arthroplasty, left
femur fracture residuals and/or right foot nerve damage with loss of motion of the
toes with chronic pain.[9]
In Mr. Neal’s case the Board asked the examiner: “Is it at least as likely as not (50 percent or
greater) that the [v]eteran’s right knee disorder and/or low back disorder were aggravated (i.e.,
permanently made worse beyond the natural progression of the disability) by the [v]eteran’s
service[-]connected left knee disability.”10
At the core of the merits dispute in this consolidated case is a statement from an en banc
decision of this Court in Allen v. Brown. 11 While discussing the law of secondary service
connection, the Allen Court said the following:
(Note: Unless otherwise indicated, the Court will use the terms “aggravation” and
“aggravated” as general terms referring to any increase in disability. This is to be
distinguished from the more specific form of the term “aggravation” as defined in
38 U.S.C. § 1153 . . . and 38 C.F.R. § 3.306(a) (1994), which authorize
compensation for an increase in disability resulting from aggravation during service
of an injury or disease that existed before service.)[12]
8 Mr. Neal initially sought secondary service connection for a right knee condition as well as the lower back
condition. Though the record is unclear on this point, Mr. Neal was apparently awarded service connection for the
right knee disability. A VA examination report linked the right knee disability to the left knee disability, and the most
recent Board decisions and Supplemental Statements of the Case (SSOCs) list only service connection for the lower
back condition as an issue.
9 Ward Record (R.) at 98 (restatement of examination request in May 2014 VA examination report) (emphasis
added); see also Ward R. at 1297 (Feb. 2014 Board remand containing identical language).
10 Neal R. at 2299-2300 (emphasis added).
11 7 Vet.App. 439 (1995) (en banc).
12 Id. at 445 (emphasis added).
4
On October 24, 2017, before Mr. Ward’s and Mr. Neal’s cases were consolidated, the Court
issued a supplemental briefing order that read, in relevant part:
1) Do Donnellan [v. Shinseki, 24 Vet.App. 167 (2010)] and Davis [v. Principi,
276 F.3d 1341 (Fed. Cir. 2003)] apply to an analysis under § 3.310(b) in view
of Allen?
2) In Hunt v. Derwinski, 1 Vet.App. 292, 296-97 (1991) the Court indicated that
38 U.S.C. § 353, the predecessor statute to section 1153, provided the definition of
aggravation for § 3.310, and that this standard required permanent worsening of
disability. Is Hunt good law on the definition of aggravation for § 3.310 cases in
view of Allen?
3) How, if at all, should McClain v. Nicholson, 21 Vet.App. 319, 321 (2007)
(disability is compensable if present at filing or at any time during pendency of
claim, even if it resolves thereafter) influence the Court’s consideration of whether
aggravation under § 3.310(b) requires a permanent increase in disability?[13]
Because of timing, the Court has a response to the supplemental briefing questions only on behalf
of Mr. Ward. Because he prevails in this matter, however, there is no prejudice in proceeding
without related briefing from Mr. Neal.
II. PARTIES’ ARGUMENTS
A. The appellants argue that the “permanent worsening” standard is inconsistent with the governing statute as construed in Allen and with the implementing regulation.
Both Mr. Ward and Mr. Neal argue that the “permanent worsening” standard is contrary to controlling law. They cite Allen to the effect that a veteran is entitled to compensation for “any
additional impairment of earning capacity resulting from a service-connected condition, regardless
of whether or not the additional impairment is itself a separate disease or injury caused by the
service-connected condition.”14 They also point to § 3.310(b), the implementing regulation, which states that “[a]ny increase in severity of a non[-]service-connected disease or injury that is
13Ward v. Shinseki, No. 16-2157 (unpublished order at 2), https// efiling. uscourts. cavc. gov/ cmecf/ servlet/
TransportRoom.
14 Allen, 7 Vet.App. at 448 (emphasis added).
5
proximately due to or the result of a service-connected disease or injury . . . will be service connected.”15
Mr. Ward distinguishes his case from Donnellan and Davis on the basis that those cases
pertain to service connection for in-service aggravation of a preexisting injury, whereas § 3.310(b) deals with aggravation of a non-service-connected condition by a service-connected disability,
which is necessarily a postservice occurrence. Mr. Ward further points out that the statutory
authority listed for § 3.310(b) is not section 1153 containing the presumption of aggravation, but
instead sections 1110 and 1131, which require compensation for any disability “resulting from
personal injury suffered . . . in line of duty.”16
As to the continuing relevance of Hunt, Mr. Ward notes that this case preceded both Allen
and a 2006 revision of § 3.310(b). Allen added the language distinguishing aggravation in a
secondary-service-connection context from that employed for purposes of section 353, the
predecessor to section 1153. The revision to § 3.130(b) added the language “any increase in
severity.” Mr. Ward further argues that Hunt primarily concerns additional disability required for
aggravation of a condition preexisting service, and reiterates his argument that § 3.310(b) derives
from a different statute than the presumption of aggravation.
Finally, Mr. Ward argues that the reasoning of McClain,17 which states that a disability is
compensable if it is present at filing or during the pendency of the claim, even if it subsequently
resolves, should dictate that the increase in disability of a non-service-connected disability under
§ 3.310 need not be permanent. Essentially, he argues that the “permanent worsening” standard is
inconsistent with the Court’s staged-ratings practice.
B. The Secretary argues from the content of § 3.310(b) that the “permanent
worsening” standard is consistent with Allen.
The Secretary argues that Mr. Ward’s argument is based on a “selective and incomplete reading of 38 C.F.R. § 3.310(b).”18 His argument emphasizes another passage in Allen:
[P]ursuant to [section] 1110 and § 3.310(a), when aggravation of a veteran’s nonservice-
connected condition is proximately due to or the result of a service-
15 38 C.F.R. § 3.310(b) (2018) (emphasis added).
16 38 U.S.C. §§ 1110, 1131 (emphasis added).
17 21 Vet.App. at 321.
18 Secretary’s Response to Supplemental Briefing Order at 2.
6
connected condition, such veteran shall be compensated for the degree of disability
(but only that degree) over and above the degree of disability existing prior to the
aggravation. [19] Cf. 38 C.F.R. § 3.322 (1994) (in compensating for aggravation of
a preservice disability by active service, it “is necessary to deduct from the present
evaluation the degree, if ascertainable, of the disability existing at the time of
entrance into active service, in terms of the rating schedule … “).[20]
At oral argument, the Secretary conceded that the term “permanent worsening” appears
neither in section 1110 nor in the implementing regulation, § 3.310. He nevertheless argued that
the “permanent worsening” standard inheres in the requirement that only the incremental increase
in disability due to the service-connected condition is compensable. He asserts that any increase
in disability must be measurable to compare it with the baseline severity of the non-serviceconnected
condition. At oral argument, the Secretary defined “permanence” as “measurability.”21
The Secretary further argues that the reasoning of Donnellan and Davis applies equally
well to the secondary-service-connection context. The Secretary quotes Davis, to the effect that
“[a] corollary to the Secretary’s usage is that an increase in disability must consist of worsening of
the enduring disability and not merely a temporary flare-up of symptoms associated with the
condition causing the disability.”22 The Secretary asserts that, like section 1153 and § 3.306,
§ 3.310(b) allows compensation only for the incremental disability above an established baseline,
concluding that the increased disability must be measurable, and therefore permanent. He also
advocates that the term “aggravation” should be consistently construed throughout all sections of
the veterans benefits statute.
The Secretary also takes the position that Hunt remains good law. He essentially argues
that Allen stipulates that compensation may be paid only for the incremental increase in disability
of the non-service-connected condition, and asserts that this requirement implies an enduring, as
opposed to temporary, increase in disability.
19 The Secretary’s regulation requires “medical evidence created before the onset of aggravation or by the
earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence
establishing the current level of severity of the nonservice-connected disease or injury.” 38 C.F.R. § 3.310(b). The
Secretary’s briefing makes it clear that he assigns the burden of production of such evidence, as well as evidence
pertaining to the natural progress of the non-service-connected condition, to the veteran. The panel takes no position
on the validity of these regulatory requirements or the Secretary’s assignment of the burden of proof.
20 Allen, 7 Vet.App. at 448.
21 Oral Argument at 34:36, Ward v. Wilkie, U.S. Vet. App. No. 16-2157 (consolidated with Neal v. Wilkie)
(oral argument held Feb. 1, 2019), http://www.uscourts.cavc.gov/oral_arguments_audio.php.
22 Davis, 276 F.3d at 1344.
7
III. ANALYSIS
A. Cases construing “aggravation” with respect to section 1153 have no relevance in
the secondary-service-connection context.
The Secretary argues that the Court should construe the term “aggravation” in the same
manner as it was construed in cases involving different provisions of Chapter 11 of the veterans
statute (sections 101(24), 1153), invoking the consistent-usage canon. The flaw in this reasoning
is that the term “aggravation” is not contained in the portions of 38 U.S.C. §§ 1110 and 1131, from
which secondary service connection derives.
As Allen makes clear, secondary service connection derives, not from section 1153, but
from sections 1110 and 1131,23 which read, in relevant part:
For disability resulting from personal injury suffered or disease contracted in line
of duty, or for aggravation of a preexisting injury suffered or disease contracted in
the line of duty . . . the United States will pay to any veteran thus disabled and who
was discharged or released under conditions other than dishonorable from the
period of service in which said injury or disease was incurred, or preexisting injury
or disease was aggravated, compensation as provided in this subchapter.[24]
The only references to “aggravation” in these statutes pertain to a preexisting injury that is
aggravated in service under the presumption of aggravation, section 1153. Thus, the statutory
phrase to be construed with respect to secondary service connection of non-service-connected
conditions is not “aggravated” or “aggravation,” but “disability resulting from [service-connected
conditions].”
Though the Allen Court might have avoided confusion by employing another term, it was
careful to define a category of “aggravation” that differs from that pertaining to section 1153. The
Court stated that it was defining a more general meaning encompassing “any increase in
disability.”25 The Court was clearly construing the statutory phrase “disability resulting from,” and
concluded that this phrase encompassed “any additional impairment in earning capacity resulting
from an already service-connected condition.” 26 This concept is incorporated into the
23 See Allen, 7 Vet.App. at 446.
24 38 U.S.C. §§ 1110, 1131 (emphasis added).
25 See supra note 12 and accompanying text.
26 See Allen, 7 Vet.App. at 448.
8
implementing regulation, § 3.310(b), which provides that “[a]ny increase in severity” of a nonservice-
connected injury or disease will be compensated.27
Though it is settled that “aggravation” for purposes of the presumption of aggravation
(section 1153) requires a permanent increase in severity,28 it does not follow that permanent
worsening is a requirement for secondary service connection of a non-service-connected injury or
disease under sections 1110 and 1131. The Allen Court decided that compensation was due for any
incremental increase in disability—any additional impairment of earning capacity—in nonservice-
connected disabilities resulting from service-connected conditions, above the degree of
disability existing before the increase—regardless of its permanence. Thus, the Secretary’s reliance
on cases construing section 1153 is misplaced.
B. Providing compensation for only the incremental disability attributable to the
service-connected condition does not require that the increase in disability must
be permanent.
Here, the Secretary concedes that the phrase “permanent worsening” appears neither in the
governing statutes, sections 1110 and 1131, nor in § 3.310, the implementing regulation. As
discussed above, sections 1110 and 1131 focus primarily on disability resulting from in-service
injuries or diseases, and only secondarily on aggravation of a preexisting injury, which in turn, is
governed by section 1153.
The Secretary nevertheless defends his importation of the “permanent worsening” standard
into the secondary-service-connection analysis by pointing to language in Allen that compensation
is “for the degree of disability (but only that degree) over and above the degree of disability existing
prior to the aggravation.” 29 He reasons that any incremental increase in disability must be
measurable, and to be measurable, the incremental disability must be permanent.
27 See 38 C.F.R. § 3.310(b).
28 Unlike sections 1110 and 1131, section 1153 includes the concept of aggravation:
A preexisting injury or disease will be considered to have been aggravated by active military,
naval, or air service, where there is an increase in disability during such service, unless there
is a specific finding that the increase in disability is due to the natural progress of the disease.
38 U.S.C. § 1153 (emphasis added).
29 Allen, 7 Vet.App. at 448.
9
The Court notes that the Secretary’s regulation, § 3.310, is not an interpretation of a statute;
it is based on the Secretary’s perception of what this Court required in Allen and Tobin.30 Thus, the
regulation is not entitled to Chevron deference.31 Furthermore, because the “permanent worsening”
standard admittedly has no basis in the express language of the regulation, the Secretary’s
interpretation of his regulation to that effect is not entitled to Auer deference.32
The Secretary may not add restrictions to a regulation where they do not exist, “because,
in doing so, the Board imposes a greater burden on a claimant than the law does.”33 Thus, the Court
must examine the Secretary’s argument that the “permanent worsening” standard logically
proceeds from a plain reading of the requirements of Allen.
As discussed above, Allen interpreted the governing statutes to provide that “any” increase
in disability of a non-service-connected condition is compensable. Conditions may wax and wane
in severity, but nevertheless be medically ascertainable as an incremental increase in disability,
and hence compensable. Allen also defined “disability” as “the impairment of earning capacity due
to disease, injury, or defect.”34
Medically determined increases in disability need not be “permanent,” in the ordinary sense
of being discernible at all times. Particularly in musculoskeletal disabilities, such as those involved
in this consolidated appeal, it is well settled that an examiner must evaluate whether additional
disability arises during flareups.35 Moreover, as illustrated by McClain, an incremental increase in
disability may be medically determined before the abatement of that disability if it was present
sometime during the adjudication of a claim.
The Court concludes that the “permanent worsening” standard has no application in cases
involving an incremental increase in disability of a non-service-connected condition proximately
30 See generally 71 Fed. Reg. 52,744 et seq. (Sept. 7, 2006).
31 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).
32 See Auer v. Robbins, 519 U.S. 452 (1997).
33 English v. Wilke, 30 Vet.App. 347, 353 (2018); see also Ortiz-Valles v. McDonald, 28 Vet.App. 65, 71
(2016).
34 Allen, 7 Vet.App. at 448.
35 See Sharp v. Shulkin, 29 Vet.App. 26, 34 (2017); Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011); DeLuca
v. Brown, 8 Vet.App. 202 (1995).
10
due to or the result of a service-connected disease or injury. It is worth noting that the Secretary
has admitted as much in several nonprecedential cases. 36
Furthermore, to the extent that the Secretary employs the word “measurable” in its primary
meaning, requiring a numerically quantifiable assessment, that requirement is also not present in
the governing statutes or in the implementing regulation. There are other ways of ascertaining the
incremental increase in disability that do not require numerical quantification. The disability
ratings schedule is replete with conditions that are not evaluated by any numerical measurement.37
Cases before this Court have required medical determinations for ascertaining the
incremental increase in disability that may not be subject to numerical quantification, but must be
evaluated by a qualified medical professional based on the totality of symptoms. In El-Amin v.
Shinseki,38 the Court remanded the case for a determination of whether and to what degree the
veteran’s service-connected PTSD may have “aggravated” his alcoholism. Allen itself remanded
for VA to determine whether a service-connected right knee arthritis increased the veteran’s
disability of arthritis in his left knee and hip. In Tobin v. Derwinski,39 discussed in the Allen case,40
the Court remanded a claim for left knee arthritis, in part for the Board to consider whether that
disability was increased by the veteran’s service-connected cavus condition of the left foot.
On remand from Allen and Tobin, the medical determination of incremental disability
might well have involved incremental disability due to flareups. If an examination is not conducted
during a flareup, to ascertain the incremental increase in disability, the examiner must estimate the
additional functional loss from the described symptoms of the flareup.41 Further, the incremental
disability resulting from flareups or repetitive motion should be expressed, if possible, in additional
loss of range of motion. If the additional disability cannot be quantified, however, it is nevertheless
compensable. The Secretary suggests no reason that such flare-ups should be treated differently
36Bohmer v. Shulkin, U.S Vet. App. No. 17-0191 (Joint Motion for Partial Remand Nov. 1, 2017); Schindel
v. Shulkin, U.S. Vet. App. No. 16-4201 (Joint Motion for Remand Oct. 24, 2017); Mickelson v. Shinseki, No. 16-1300,
2017 WL 3224670 (Vet. App. July 31, 2017) (mem. dec.).
37 See, e.g., 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8513 (incomplete paralysis in peripheral nerve
injuries evaluated according to whether it is subjectively “mild,” “moderate,” or “severe”); see also 38 C.F.R. § 4.130
(2018) (mental disabilities rated according to collective symptoms involving no numerical assessments).
38 26 Vet.App. 136 (2013).
39 2 Vet.App. 34 (1991).
40 Allen, 7 Vet.App. at 443-44.
41 Sharp, 29 Vet.App. at 34.
11
when they are caused by a service-connected disease or injury after service, as opposed to an injury
or disease incurred in service.
Finally, the U.S. Court of Appeals for the Federal Circuit has recently held that pain alone
can constitute a compensable disability, at least in musculoskeletal claims.42 So, incremental pain
might constitute an increase in disability of a non-service-connected condition, and by its very
nature, pain cannot be objectively measured.
The Court does not regard Hunt as binding authority on the permanent-worsening issue.
Hunt involved a Board denial of service connection for aggravation of a preexisting knee condition
under 38 U.S.C. § 353 (the predecessor to section 1153). The Court stated that the legal issue in
the case was whether the Board had properly applied the definition of “aggravation” in section 353
(the presumption of aggravation) and its implementing regulation 38 C.F.R. § 3.306. The Court’s
pronouncement that “[t]hese provisions [section 353 and § 3.306] define ‘aggravation in service’
for purposes of awarding compensation under 38 U.S.C. § 310 (1988) [sic]”43 is plainly dicta. To
the extent that the Hunt Court may have intended a binding interpretation of § 3.310, as it existed
at that time, that interpretation was effectively overruled by the en banc Allen decision, which set
forth a different definition.
For reasons discussed above, the Court rejects the Secretary’s contention that the
“permanent worsening” standard inheres in either the language of Allen or in the Secretary’s
regulation. The Court will therefore set aside the Board decisions of appellants Ward and Neal,
and remand the secondary-service-connection claims in those cases for readjudication under the
appropriate legal standard.
However, the Court will deny the motion for class certification. In denying the class
certification motion at this time, the Court expects the VA to take steps to immediately implement
this precedential decision throughout the VA system and apply it to all cases pending before VA
where the appropriate legal standard for assessing the incremental increase in disability of a nonservice
connected disability resulting from a service connected disability is relevant.
42 Saunders v. Wilkie, 886 F.3d 1356 (2018).
43 Hunt, 1 Vet.App. at 296. Mr. Ward notes that there was no section 310 in the statute until 1991, and that
provision relates to chief information officers. It is assumed that the Court’s intended reference was to § 3.310. That
provision, however, does not discuss “aggravation in service.”
12
IV. CONCLUSION
On consideration of the foregoing, the April 12, 2016, Board decision in the appeal of Larry
M. Ward, and the March 15, 2017, Board decision in the appeal of Gabriel S. Neal, are SET ASIDE
and Mr. Ward’s and Mr. Neal’s secondary-service-connection claims are REMANDED for
readjudication consistent with this decision. The motion for class certification is denied.
GREENBERG, Judge, concurring in part and dissenting in part: While I concur on the
merits of the decision with my esteemed colleagues with regard to the veterans here, I could not
agree to leave the countless thousands of veterans in this class to the fate of a Secretary and
Department as arbitrary and capricious as these. Congress created this Court decades ago to correct
and vitiate unjust actions and policies within our specific jurisdiction. We were wrong to deny
class action certification power for 30 years and we are still wrong in refusing to exercise it here.
I would have certified the class now. “This petition raises important questions about how the
Government carries out its obligations to our veterans.” Mathis v. Shulkin, 137 S. Ct. 1994, 1994
(2017) (Sotomayor, J., dissenting). The issue of systemic VA delay “is of much significance to
many today and, respectfully, it is worthy of this Court’s attention.” Id. at 1995 (Gorsuch, J.,
dissenting). Congress intended a prompt decision in all matters either by a single Judge or in panels
of no fewer than three Judges. This Court has a special obligation to a class of litigants especially
favored by Congress. We should decide all matters when ready and never decline to do so because
similar or even identical issues are pending elsewhere. The parties have their remedies provided
by our procedures, Congress, the Federal Circuit, and the Supreme Court. We have been given
broad direction to “use class actions to promote efficiency, consistency, and fairness in its
decisions” through our authority to issue writs. Monk v. Shulkin, 855 F.3d 1312, 1321 (Fed. Cir.
2017) (Reyna, J.). I have long held the view that we had class, aggregate, or group certification
powers. See Monk v. Wilkie, 30 Vet.App. 167, 200 (Aug. 23, 2018) (Greenberg, J., dissenting).
There is no need to wait any longer to certify the class in this case as waiting merely delays the
implementation of the Court’s holding to a broader class of veterans and goes against the principles
the Court is encouraged to promote and protect.
While I concur here, I agree with Justice Brennan, that “[d]issent for its own sake has no
value . . . . However, where significant and deeply held disagreement exists, members of the Court
have a responsibility to articulate it. . . . Unanimity is not in and of itself a judicial virtue. . . .
13
Judges have no power to declare law. Courts derive legal principles and have a duty to explain
why and how a given rule has come to be. . . . [Judges] are forced by a dissent to reconsider the
fundamental questions and rethink the result . . . . In my judgment . . . the unique interpretive role
of [our Court] with respect to the Constitution [and our authority] demands some flexibility with
respect to the call of stare decisis. . . . [We should not be] captive to the anachronistic view of longgone
generations. . . . The right to dissent is one of the great and cherished freedoms by reasons of
the excellent accident of our American births.” William J. Brennan, In Defense of Dissents, 37
HASTINGS L.J. 427, 427-35 (1985) (emphasis in original). Holding the matter in abeyance now
does nothing but delay a deserving result for veterans. For the foregoing reason, I respectfully
concur.