noting that Supreme Court has held that an administrative agency’s interpretation of a statute is entitled to deference when not inconsistent with the statutory mandate and when consistent with the policy that Congress sought to implement
How later courts described this case
- noting that Supreme Court has held that an administrative agency’s interpretation of a statute is entitled to deference when not inconsistent with the statutory mandate and when consistent with the policy that Congress sought to implement
- deferring to Secretary's legal interpretation, expressed in the form of a BVA decision
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
I concur, but arrive at the result reached in Part III by way of a slightly different analysis. In the absence of the appellant’s pursuit of appellate review (with the filing of a Notice of Disagreement and Substantive Appeal) as to the regional office’s August 1990 termination of adjudication, such termination became final one year after the date of such determination. As a consequence, the only avenue open to the appellant to reestablish such benefits was the filing of a new claim, an action he took with his February 1991 letter to the regional office (which letter clearly constituted the filing of a new claim rather than a disagreement with the August *79 1990 termination decision). As the filing of this new claim occurred after the effective date of Pub.L. No. 101-508, compliance with that statutory provision was mandatory, rather than discretionary, on the part of the Secretary. Thus, it cannot be argued that Karnas v. Derwinski, 1 Vet.App. 308 (1991), requires that the old version of 38 U.S.C. § 1502 (equating post-age 65 status with total and permanent disability) apply in that the Secretary promulgated his revision of 38 C.F.R. § 4.17 during the pendency of the appellant’s new claim.