for review pursuant to 38 U.S.C. § 502 .
for review pursuant to 38 U.S.C. § 502.
for review pursuant to 38 U.S.C. § 502.
J. ROSINSKI, Douglas J. Rosinski, Esq. Inc., Columbia, SC,
argued for petitioner in 2015-7021.
M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS,
argued for petitioner in 2015-7025.
VALENTINI, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, DC, argued for petitioners in 2015-7061. Also
represented by CARL JOHN NICHOLS; BARTON F. STICHMAN,
National Veterans Legal Services Program.
F. HOCKEY, JR., Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER; DAVID J. BARRANS, BRIAN D. GRIFFIN, Office
of General Counsel, United States Department of Veterans
JAMES REED, Widener University, Wilmington, DE, for amicus
curiae Warriors Helping Warriors, Inc. in 2015-7021.
K. DRAKE, The Veterans Clinic at the University of Missouri
School of Law, Columbia, MO, for amici curiae Angela K.
Drake, Brian Clauss, Yelena Duterte, Hugh McClean, Laurie
Forbes Neff, Patricia E. Roberts, Susan Saidel, Stacey-Rae
Simcox, Aniela K. Szymanski, Michael Joel Wishnie in
BERLINER, O'Melveny & Myers LLP, Los Angeles, CA, for
amicus curiae Mazon: A Jewish Response to Hunger. Also
represented by JASON ALAN ORR, DIMITRI PORTNOI, CATALINA JOOS
VERGARA in 2015-7061.
PROST, Chief Judge, WALLACH and TARANTO, Circuit Judges.
related petitions, the American Legion (" American
Legion" ), the National Organization of Veterans'
Advocates, Inc. (" NOVA" ), and the Veterans
Justice Group, LLC (" VJG" ) (collectively, "
Petitioners" ), challenge the validity of regulations
issued in 2014 by the Department of Veterans Affairs ("
VA" or " Secretary" ) pursuant to its
notice-and-comment rulemaking authority. See
Standard Claims and Appeals Forms, 79 Fed. Reg.
57,660 (Dep't of Veterans Affairs Sept. 25, 2014) ("
Final Rule" ). The Final Rule amends the VA's
adjudication and appellate regulations to require that all
claims and appeals originate on standard VA forms.
See id. at 57,678. For the reasons set
forth below, we deny the petitions and hold the Final Rule
valid because it accords with applicable rulemaking
procedures and is not arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law.
understand the issues relevant to this appeal, we discuss, in
turn, the VA's prior regulation, the Final Rule, and the
general arguments in the Petitions for Review.
Veterans are entitled to compensation " [f]or 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 line of duty . . . during a
period of war." 38 U.S.C. § 1110 (1998). For
veterans to receive compensation under the laws administered
by the VA, " [a] specific claim in the form prescribed
by the Secretary . . . must be filed." Id.
§ 5101(a)(1). The VA's prior regulation implemented
this authority by providing that " [ a ]
ny communication or action, indicating an intent to
apply for . . . benefits[,] . . . may be considered an
informal claim." 38 C.F.R. § 3.155(a) (2014)
(emphasis added) (" Prior Regulation" ). Under the
Prior Regulation, a veteran could establish a claim's
effective date (i.e., when the claimant begins to receive
compensation) by filing an informal claim, so long as a
formal application was received by the VA " within [one]
year from the date [the formal application form] was sent to
the claimant." Id.
claimant perfected an informal claim by filing a formal
application within the one-year time period, a VA Agency of
Original Jurisdiction, typically a VA regional office ("
RO" ), considered the claim, gave notice to the claimant
of its decision, and informed the claimant of his or her
right to appeal. See 38 U.S.C. § 5104 (1998);
38 C.F.R. § 3.103(b)(1) (2014). An appeal could be
initiated by filing a Notice of Disagreement ("
NOD" ), see 38 U.S.C. § 7105(a) (1998),
and unless the requested benefit was granted or the NOD
withdrawn, the VA would issue a " statement of the
case" (" SOC" ) summarizing the reasons for
the VA's decision on each issue, id. §
7105(d)(1). Following issuance of the SOC, the "
claimant [would] be afforded a period of sixty days from the
date of the [SOC] to file a formal appeal" with the
Board of Veterans' Appeals (" Veterans Board"
). Id. § 7105(d)(3). The statute provides that
the " appeal should set out specific allegations of
error of fact or law, such allegations related to specific
items in the [SOC]." Id.
is required to be: (1) filed within one year of the mailing
of notice of the RO's decision; and (2) in writing.
Id. § 7105(b)(1). In addition to these
statutory requirements, the VA required an NOD to " be
in terms which [could] be reasonably construed as
disagreement with [the RO's decision] and a desire for
appellate review," although " special wording [was]
not required." 38 C.F.R. § 20.201 (2014). However,
if the RO's notice of decision decided multiple issues,
under the Prior Regula tion the claimant was required to
specify which agency determinations he or she sought to
September 2014, the VA promulgated the Final Rule, which
sought to " strike a balance between standardizing,
modernizing, and streamlining" the claim initiation and
appellate process, while providing " claimants . . .
with a process that remains veteran-friendly and
informal." Final Rule, 79 Fed. Reg. at 57,664.
the Final Rule incorporated a majority of the amendments
originally proposed by the VA in 2013, it altered the
proposed rule in one important respect. See
Standard Claims and Appeals Forms, 78 Fed. Reg.
65,490, 65,492 (Dep't of Veterans Affairs Oct. 31, 2013)
(" Proposed Rule" ). Under the Proposed Rule,
submission of an informal claim--e.g., a narrative
submission--would no longer serve as an effective date
placeholder that could later be perfected by the filing of a
formal claim. See id. at 65,495 (altering
the Prior Regulation's definition of " claim"
under 38 C.F.R. § 3.1(p) to exclude informal
communications). Instead, an " incomplete claim"
would provide the effective date placeholder function
formerly provided by an informal claim, if perfected by the
filing of a standard application form within one year.
Id. at 65,494. However, in contrast to the flexible
nature of the prior " informal claim" system, under
the Proposed Rule, a submission would be considered an "
incomplete claim" only if a claimant filled out,
completely or incompletely, an online application via the
VA's webbased electronic claims application system, but
" d[id] not transmit the online application for
processing." Id. Otherwise, claims would be
considered received as of the date they were filed on a
standard paper application form.
published the Proposed Rule in 2013, the VA explained it was
" facing an unprecedented volume of compensation
claims" resulting in " unacceptable delays at every
phase of [the] process for adjudicating claims and
appeals." Id. at 65,492. The VA received
fifty-three comments in response to the Proposed Rule. While
some commenters expressed approval of the agency's
attempt to bring increased clarity and efficiency, others
expressed concern with certain aspects of the Proposed Rule,
including the VA's proposed interpretation of "
incomplete claim," which some perceived as unnecessarily
of the Proposed Rule's " incomplete claim"
concept, the Final Rule establishes an " intent to
file"  process, which allows claimants to
establish the effective date of an award in any of three
ways. First, under the Final Rule, an intent to file may be
established by saving an electronic application within a VA
web-based electronic claims application system before
submitting it for actual processing. 38 C.F.R. §
3.155(b)(1)(i) (2015). Second, a claimant may submit a VA
standard form (" VAF 21-0966" ) in either paper or
electronic form. Id. § 3.155(b)(1)(ii); Final
Rule, 79 Fed. Reg. at 57,666. Third, a claimant may establish
intent to file by communicating orally with certain
designated VA personnel " either in person or by
telephone," who will document the claimant's intent.
Final Rule, 79 Fed. Reg. at 57,666; see 38 C.F.R.
§ 3.155(b)(1)(iii) (2015). So long as a formal
application is filed within one year of the submission, the
VA will deem the effective date to be the date the "
intent to file" submission was received.
the Final Rule specifies that, where the RO " provides,
in connection with its decision, a form identified as being
for the purpose of initiating an appeal, an NOD would consist
of a completed and timely submitted copy of that form."
Final Rule, 79 Fed. Reg. at 57,679; see 38 C.F.R.
§ 20.201(a)(1) (2015). The Final Rule further clarifies
the " VA will not accept as [an NOD] an expression of
dissatisfaction . . . that is submitted in any other format,
including on a different VA form." Final Rule, 79 Fed.
Reg. at 57,679; see 38 C.F.R. § 20.201(a)(1)
Petition for Review
contend the Final Rule departs from the " paternalistic,
veteran friendly, and non-adversarial nature of veterans
benefits adjudication." VJG (15-7021) Br. 1 (internal
quotation marks omitted). Petitioners timely filed this
appeal pursuant to 38 U.S.C. § 502, which provides this
court with jurisdiction to review the Final Rule.
See 38 U.S.C. § 502 (2012). " [U]nder 38
U.S.C. § 502, we may review [the] VA's procedural
and substantive regulations, and the process by which those
regulations are made or amended." Paralyzed Veterans
of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334,
1339 (Fed. Cir. 2003) (citation omitted).
Standard of Review
Petitions under 38 U.S.C. § 502 are reviewed under the
Administrative Procedure Act (" APA" ), as codified
in 5 U.S.C. § 706. See Nyeholt v. Sec'y
of Veterans Affairs, 298 F.3d 1350, 1355 (Fed. Cir.
2002). Under § 706, we must " hold unlawful and set
aside agency action" we find " arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2) (2012).
" This review is highly deferential to the actions of
the agency." Nat'l Org. of Veterans'
Advocates, Inc. v. Sec'y of Veterans Affairs, 260
F.3d 1365, 1372 (Fed. Cir. 2001) (internal quotation marks
and citation omitted).
The Final Rule Is a " Logical Outgrowth" of the
The APA's rulemaking provisions generally require that
notice of proposed rules be published in the Federal Register
and that 'interested persons' be given the
'opportunity to participate in the rule making through
submission of written data, views, or arguments.'"
AFL-CIO v. Chao, 496 F.Supp.2d 76, 83 (D.D.C. 2007)
(quoting 5 U.S.C. § 553(c)). Although the APA does not
explicitly address the relationship the notice of proposed
rulemaking must have to the final rule, it provides some
guidance when it states that agencies must publish in their
notice of proposed rulemaking " either the terms or
substance of the proposed rule or a description of the
subjects and issues involved." 5 U.S.C. §
this standard, an agency's final rule need not be
identical to the proposed rule. Indeed, " [t]he whole
rationale of notice and comment rests on the expectation that
the final rules will be somewhat different and improved from
the rules originally proposed by the agency."
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