Martin v. Brown

STEINBERG, Associate Judge,

concurring:

I concur in the opinion of the Court. I write separately, however, to consider a woolly segment of the “confusing tapestry” of conflicting VA regulatory provisions relating to individual unemployability (IU) and total disability for purposes of disability compensation. See Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991); Hatlestad v. Derwinski, 3 Vet.App. 213, 214 (1992); cf. Talley v. Derwinski, 2 Vet.App. 282, 287 (1992).

Pursuant to 38 C.F.R. § 4.16 (c) (1991), a veteran whose “only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes [the] veteran from securing or following a substantially gainful occupation”, is to be assigned a special IU “100 percent schedular evaluation under the appropriate diagnostic code” rather than a non-schedular total disability rating pursuant to 38 C.F.R. § 4.16 (a), (b) (1991) (emphasis added). The applicable provision of the VA Adjudication Procedure Manual, Manual M21-1 (Manual), states: “If the veteran claims to be unable to obtain or retain employment because of a service-connected psychiatric disability and employment is actually precluded for this reason, assign [an IU] 100 percent schedu-lar evaluation ( 38 C.F.R. § 4.16 (c))”. Manual, Part VI, para. 7.65. The Manual thus appears to construe the word “only” in 38 C.F.R. § 4.16 (c) as not precluding award of such an IU rating to those veterans, such as appellant, who suffer from service-connected disabilities in addition to mental disability rated 70%.

The application of 38 C.F.R. § 4.16 (c) as a sword against claimants suffering from such a combination of disabilities, rather than as a protective shield granting IU schedular total disability benefits to those with mental disability rated 70%, would raise a serious question as to whether such action is “arbitrary and capricious” under 38 U.S.C. § 7261 (a)(3)(A) (formerly § 4061). When exercising its discretion in a given manner, VA is required to articulate a satisfactory explanation for its action. See Smith (Barbara) v. Derwinski, 1 Vet.App. 267, 279 (1991); accord Int’l Ladies Garment Workers’ Union v. Donovan, 722 F.2d 795 (D.C.Cir.1983), cert. denied, 469 U.S. 820 , 105 S.Ct. 93 , 83 L.Ed.2d 39 (1984); Nat’l Nutritional Foods v. Weinberger, 512 F.2d 688 (2d Cir.1975), cert. denied, 423 U.S. 827 , 96 S.Ct. 44 , 46 L.Ed.2d 44 (1975). Additionally, because the “arbitrary and capricious” standard has particular application to the process by which a regulation is adopted, an agency’s interpretation of the regulation must be upheld, if at all, on the basis articulated by the agency. See United States v. Garner, 767 F.2d 104 (5th Cir.1985). Because VA has never explained — either in the supplementary information accompanying the proposed and final publications of the regulation ( 53 Fed. Reg. 18099 (1988) (proposed); 54 Fed.Reg. 4281 (1989) (final)) or in its supplemental memorandum filed in this case — the basis for including the word “only” in 38 C.F.R. § 4.16 (c), I harbor grave doubts as to whether a restrictive construction of the regulation, assigning a 100% schedular un-employability rating only to veterans suffering solely from a 70% mental disability, would survive the “arbitrary and capricious” standard of review.