Opposition Brief — Brown v. Gardner

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Bopwme Court,

FIT en

MAR 10 1994

No. 93-1128

0A T |

IN THE SUPREME COURT OF THE UNITED STATES ="

October Term, 1993

Jesse Brown, Secretary of Veterans Affairs,

Petitioner

Vv.

Fred P. Gardner

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Joseph Michael Hannon, Jr.*

THOMPSON, O'DONNELL, MARKHAM,

NORTON & HANNON

805 15th Street, N.W.

Suite 705

Washington, D.C. 20005

(202) 289-1133

William S. Mailander

625 Indiana Avenue, N.W.

Suite 250

Washington, D.C. 20004

(202) 416-7791

Attorneys for Respondent

Fred P. Gardner

* Counsel of Record

‘

AW es

~ ra

4 e j

QUESTION PRESENTED TABLE OF CONTENTS

A federal statute initially enacted in 1924 as part of the

“war risk insurance act" provides disability compensation to Statement of the Case

veterans injured as a result of medical treatment administered by Summary of the Argument

Department of Veterans Affairs personnel. The statute was Reasons for Denying the Petition

initially passed to provide a worker's compensation-type benefit Conclusion

to veterans, without proof of fault. Beginning in 1934, however,

the VA began promulgation of various regulations designed to TABLE OF AUTHORITIES

restrict the compensation available to veterans under the | Page

‘CASES:

statute. These regulations variously required the veteran to

‘ Aaron v. SEC, 446 U.S. 680, 694 (1980) 23

present evidence of some form of fault or accident in the medical

Adamski_ v. Derwinski, 2 Vet. App. 46 (1991) 32

treatment as a predicate to compensation. The question in this

Bethesda Hospital Assn. v. Bowen, 485 U.S. 399 (1988) 12

case is whether the Court of Veterans Appeals and the Court of

Boone v. Lightner, 319 U.S. 561 (1943) 18

Appeals for the Federal Circuit were correct in striking down the

Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932) 26

current regulation containing a fault requirement because it is :

Chevron v. U.S.A., Inc. v. Natural Resources Defense

inconsistent with the clearly stated intent of Congress contained Council, Inc., 567 U.S. 837 (1984) : 6

in the straightforward no-fault language of the statute. Commissioner v. Acker, 361 U.S. 87 (1959) 23

Conroy v. Aniskoff, 507 U.S. __, 113 S.Ct. 1562

(1993) 10,18

Consumer Product Safety Comm'n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980) 19,20

Darby v. Cisneros, 509 U.S. ; 113 S.Ct. 2539 (1993) 19

EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) 26

ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988) 30

Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) 18

Fugere v. Derwinski, 1 Vet.App. 103 (1990),

affd 972 F.2d 331 (Fed. Cir. 1992) : 32

i . ii

Gilbert v. Derwinski, 1 Vet.App. 49 (1990)

Hines v. Derwiniski, 2 Vet.App. 30 (1991)

Jones vy. Derwinski, 1 Vet.App. 596 (1990)

King v. Brown, 4 Vet.App. 519 (1993)

: , 502 U.S.

112 S.Ct. 570 (1991)

Kirkhuff v. Nimmo, 683 F.2d 544 (D.C. Cir. 1982)

Leary v. United States, 395 U.S. 6 (1969)

Miller v. United States, 294 U.S.. 435 (1935)

Moore v. Derwinski, 2 Vet.App. 67 (1992)

Morton v. Ruiz, 415 U.S. 199 (1974)

—_—_!

Mut. Auto Ins. Co., 463 U.S. 29 (1983)

Murphy v. Derwinski, 1 Vet.App. 78 (1990)

440 U.S. 4727 (1979)

114 S.Ct. 798 (1994)

Corp., 503 U.S. , 112 S.Ct. 1394 (1992)

491 U.S. 440 (1989)

Rowan Cos..v. United States, 452 U.S. 247 (1981)

Russello v. United States, 464 U.S. 16 (1983)

’

442 U.S. 397 (1979)

Tcherepnin v. Knight, 389 U.S. 332 (1967)

Tobler v. Derwinski, 2 Vet.App. 8 (1991)

United States v. Brown, 348 U.S. 110 (1954).

United States v. Calamaro, 354 U.S. 351 (1957)

iii

31,32

22,23

11,30

10,19

United States v. Rutherford, 442 U.S. 544 (1978)

Zuber v: Allen, 396 U.S. 168 (1969)

STATUTES and REGULATIONS:

Veterans Dioxin and Radiation Exposure

Compensation Standards Act, Pub. L. No. 98-542,

98 Stat. 2725 (1984)

23.

World se iaeenadion Act, Public Law No. 68-242 (1924) 17

28 U.S.C. § 1346(b)

38 U.S.C. § 105

38 U.S.C. § 213

38 U.S.C. § 312

38 U.S.C. § 351 (1958)

38 U.S.C. § 501

38 U.S.C. § 1110

38 U.S.C. § 1121

38 U.S.C. § 1131

38 U.S.C. § 1151

38 U.S.C. § 1153

38 U.S.C. § 1155

38 U.S.C. § 1710 (a) (1) (D)

38 U.S.C. § 5107

38 U.S.C. § 5109

38 U.S.C. § 7104 (c)

38 U.S.C. § 7261 (a) (3) (C)

38 C.F.R. Part 17

38 C.F.R.:

Section 3.102

Section 3.303 (a)

Section 3.310 (a)

Section 3.358 (b) (1)

Section 3.358 (b) (2)

Section 3.358 (c) (1)

Section 3.358 (c) (3)

Section 14.507

VA Regulations:

No. 137

No. 157

No. 167

Passim

MISCELLANEOUS:

Administrator's Decision No. 255 (August 9, 1934)

Annual Report of the Secretary of Veterans Affairs,

Fiscal Year 1991

Brief for the United States as

, 507 U.S.

Conroy v. Aniskoff , 123 L.Ed. 2d 229

(1993) (No. 91-1353)

Hearings Before the House Committee on World War

Veterans' Legislation, 68th Cong.,

lst Sess. (1924)

9 Comp. Gen. 515 (1930)

138 Cong. Rec. $4040 (daily ed. March 20, 1992) 16,17,29

134 Cong. Rec. 31465

S. 2383, 102d Cong., 2d Sess. (1992)

43 Fed. Reg. 51015 (November 2, 1978)

Memorandum of the Solicitor (October 24, 1935)

17,29

0.G.C. Precedent Opinion 2-78 (October 25, 1978) 26,28,30

0.G.C. Digested Opinion 212B (March 8, 1984) 26,27

0.G.C. Precedent Opinion 80-90 (July 18, 1990) 15,18

0.G.C. Precedent Opinion “99-90

(December 24, 1990) 24,28,29

S. Rep. No. 397, 68th Cong., ist Sess. (1924) 17

35 Op. Att'y Gen. 76 (1926) 22

36 Op. Att'y Gen. €\ (1929) 22

50 Op. VA Gen. Conv. 439 (1928) 21

65 Op. VA Gen. Conv. 429 (1930) 21

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

Jesse Brown, Secretary of Veterans Affairs,

Petitioner

Vv.

Fred P. Gardner

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

Fred P. Gardner, a veteran of the Korean conflict era,

underwent surgery at a VA medical facility in June of 1986 to

relieve radiating back pain due to a herniated disc in the lumbar

spine. While it is correct to say that the surgery was

"successful in removing the herniated disc” (Pet. at 6), Mr.

Gardner suffered a “bad result." Immediately after the surgery

neurological damage manifested itself in his left leg. From the

date of surgery, Mr. Gardner experienced severe nerve damage and

muscular wasting in the left leg until he became completely

disabled and was discharged to a nursing home. Today Mr. Gardner

wears a leg brace, uses a cane, requires a wheel chair for

hospital visits, and is disabled from employment.

Over two years after the surgery, Mr. Gardner filed a claim

with the Waco, Texas, VA regional office [VARO] for disability

compensation benefits afforded him by Congress under 38 U.S.C. §

1151, which provides in pértinent part as follows:

Where any veteran shall have suffered an

injury, or an aggravation of an injury, as

the result of .. . medical or surgical

treatment .. . and not the result of such

veteran's own willful misconduct, and such

injury or aggravation results in additional

disability to. . . the veteran, disability

or death compensation under this chapter

- + « Shall be awarded in the same manner as

if such disability, aggravation, or death

were service-connected.

The VA offers two major disability benefits programs:

service-connected disability compensation, for injury or disease

ordinarily incurred during service (generally referred to as

compensation) and non-service-connected disability pension

(generally referred to as pension). By operation of Section

1151, Mr. Gardner would have been eligible for service-connected

disability compensation for this surgical injury in the form of a

monthly payment designed to offset the degree to which the

disability would impair his ability to earn a living.*’ The rate

of compensation is set by a schedule with ten percentage grades

of disability based on the seriousness of the injury, ranging

from 0 percent to 100 percent. See 38 U.S.C. § 1155.2 For

fiscal year 1991, the VA paid to veterans and their dependents

1 Under Section 1151, benefits "shall be awarded in the

same manner as if such disability .. . were service-connected."

These benefits are sometimes referrred to as "“quasi-service-

connected benefits."

2 The establishment of service connection even at the 0

percent level may also entitle a veteran to ancillary benefits”

such as public employment preferences, job retention rights, and

basic VA health care. See, e.g., 38 C.F.R. Part 17. If service

connection were established at a 50% level, the veteran would be

entitled to medical treatment for all conditions. 38 U.S.C. §

1710(a)(1)(D).

over $12.13 billion in compensation benefits and over $3.9

billion in pension benefits. Annual Report of the Secretary of

Veteran Affairs, Fiscal Year 1991 at 115.

Mr. Gardner's claim was denied by the VARO in Waco, Texas.

Mr. Gardner then appealed pro se to the Board of Veterans’

Appeals [BVA] in Washington, D.C., which also denied the clain. ]

The record at the VARO and the BVA unmistakably demonstrates that

Mr. Gardner suffered atrophy of the musculature of the left leg

secondary to the surgery, and an aggravation of a pre-existing

ankle instability due to that left leg weakness. Indeed, these

findings were adopted by VA decisionmakers at every level of

review and accepted by the BVA in its final decision. The

adverse results from the surgery were confirmed in an examination

by the treating surgeon conducted on May 9, 1989, for the purpose

of assisting the VA in evaluating the claim. (C.A. App. at 121).

Throughout the proceedings before the VA, the only reason

given for the rejection of Mr. Gardner's claim was his failure to

prove fault or accident on the part of VA medical personnel, as

required by the current VA regulation implementing Section 1151

benefits. That regulation provides in pertinent part as follows:

Compensation is not payable for either the

contemplated or foreseeable after results of

approved medical or surgical care properly

administered, no matter how remote, in the

absence of a showing that additional

disability or death proximately resulted

through carelessness, negligence, lack of

proper skill, error in judgment, or similar

instances of indicated fault on the part of

the Department of Veterans Affairs. However,

compensation is payable in the event of the

occurrence of an “accident” (an unforeseen,

untoward event), causing additional

disability or death proximately resulting

from Department of Veterans Affairs

hospitalization or medical or surgical care.

38 C.F.R. § 3.358(c)(3). Neither the VARO nor the BVA was free

to decide the claim contrary to the terms of the existing

regulation. 38 U.S.C. § 7104(c).

The Court of Veterans Appeals [COVA] reversed the BVA denial

of benefits in a unanimous three-judge opinion authored by Chief

Judge Nebeker. The decision focused on whether the VA properly

implements Section 1151 benefits by requiring a showing of fault

by the veteran under its regulation.? At that stage in the

litigation, the Secretary agreed that a literal reading of the

statute did not include an element of fault. (Pet. App. at 25a).

Instead, the Secretary argued that giving full play to a literal

reading of the statute would lead to a "ludicrous result." Id.

He asserted that the words of the statute -- “injury resulting in

additional disability" -- would require compensation for any

change in the veteran's condition resulting from surgery, such as

a surgical scar or the amputation of a gangrenous limb. The

Secretary believed the fault requirement was necessary to

preclude this assertedly absurd an scbuition from a literal

application of the statute.

3 After the initial round of briefing, COVA ordered the

parties sua sponte to address the issue of "whether the

regulation at 38 C.F.R. § 3.358(c)(3) . . . with its inclusion of

an element of fault is inconsistent with 38 U.S.C. § [1151]}."

Order, November 6, 1990. Thereafter, COVA invited supplemental

memoranda from interested veterans' groups and appointed Mr.

Gardner's present counsel of record as amicus curiae to that

court. Order, March 15, 1991.

wea

In rejecting this argument, COVA concluded there was

insufficient evidence of any congressional intent to limit

compensation to instances of VA fault, as the Secretary had

accomplished by regulation. COVA observed that the statute

imposes only two limitations on the granting of benefits: first,

that the injury occurs “as a result of" medical treatment; and,

second, that the injury must not be a "result of such veteran's

willful misconduct." (Pet. App. at 27a). Reasoning from this

structure of the statute, COVA concluded that Congress had

consicered the issue of fault and intentionally excluded it from

the statute. COVA found that this conclusion was not

contradicted by any of the legislative history. In fact, COVA

observed that the legislative history surrounding the 1924

enactment was as compatible with a no-fault system as with a

fault system. (Pet. App. at 29a). Finally, GOVA rejected the

Secretary's plea for deference to his interpretation of the

statute, since the statute was plain on its face. Id.

On appeal to the Court of Appeals for the Federal Circuit,

another unanimous panel affirmed the invalidity of the

Secretary's fault-based regulation in the face of a new argument

by the Secretary in that court. There the Secretary argued for

the first time that the statute at issue was ambiguous. The

Secretary suggested that the words of the statute -- "as a result

of" -- were unclear and justified the adoption of the regulation

requiring proof of fault as a predicate to compensation. The

purpose of this change in tactics by the Secretary was to bring

ee _o..

Section 1151 under the deferential standard afforded an agency's

interpretation of an ambiguous statute by Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

However, neither the Secretary nor his predecessors had ever in

the 68 year history of the statute taken the position that the

statute was ambiguous.

The Federal Circuit concluded that the language "as a result

of" was not ambiguous and "mandates only a causation

requirement." (Pet. App. at 7a). The Federal Circuit recognized

that fault and causation are fundamentally distinct concepts in

the law which Congress has routinely distinguished in other

legislation. When read in its entirety, the statute makes clear

that the preclusion of a fault element by Congress was both

informed and intentional. (Pet. App. at 8a). The court also

noted that the VA's own adjudication of Mr. Gardner's claim

readily distinguished between these two elements of fault and

causation.

The Federal Circuit similarly found from a review of the

legislative history that "Congress's paramount concern was to

compensate veterans injured by VA medical treatment." (Pet. App.

at 17a). The court found no indication that Congress intended to —

place upon the veteran the “complex burden of proving negligence"

as a condition of compensation. Id. Regarding the Secretary's

request for deference to his regulatory interpretation, the

Federal Circuit concluded that Congress had left no gap in the

statutory mandate that would permit the exercise of discretion by

the Secretary to impose a fault requirement in the conpensetian “Tal

process. The court need not defer to the Secretary's asserted

"long-standing" interpretation of the statute because that

interpretation was not contemporaneous with the statute's

enactment. Finally, the court observed that VA regulations

should be subjected to "vigorous review" because such regulations

were never subject to judicial review until the creation of the

Court of Veterans Appeals in 1988:

Many VA regulations have aged nicely simply

because Congress took so long to provide for

judicial review. The length of such

regulations' unscrutinized and

unscrutinizable existence, however, does not ~

in itself form a basis for us to presume they

are valid and therefore defer to them.

(Pet. App. at 20a).

SUMMARY OF THE ARGUMENT

Section 1151 as enacted by Congress provides in its plain

language that a veteran injured as a result of VA medical

Areatment is entitled to compensation for that injury without

having to prove fault of any kind. The application by the Court

of Veterans Appeals and the Federal Circuit of routine and well

established principles of statutory construction to the plain

language of Section 1151 was manifestly proper and does not

require review under any precedents of this Court. Under those

circumstances, there is no justification for ‘any reference to

legislative history or to an asserted "long-standing" agency

interpretation of Section 1151 based on the contrived arguments

by petitioner that the statute is ambiguous. This is

particularly true where the benefits of that statute must be

liberally construed by the VA in favor of the veteran and against

the restrictive reading given the statute.

In any event, the legislative history is consistent with the

plain meaning found by the courts below. The VA's own General

Counsel on no less than two occasions has rendered opinions on

this issue which are in conformity with the reasoning of the

courts below and contrary to the position he now takes in this

Court. Similarly, the asserted "long-standing" interpretation of

Section 1151 by the VA, imposing an element of. fault in Section

1151 claims, is in reality a confusing maze of ambiguity and

conflict, as has been conceded by the VA's General Counsel as

recently as 1990. This history of the VA's efforts to limit

Section 1151 benefits is a perfect example of the chaos which

follows from an agency's failure to adhere to the plain meaning

of Congressional enactments.

Nor is there any reason for this Court to review the

judgment below in order to correct the Federal Circuit's

conclusion that regulations of the Secretary should be subject to

“vigorous review." The courts having exclusive jurisdiction over

decisions of the Board of Veterans' Appeals should employ a

vigorous review of agency regulations. Congress has narrowly

circumscribed the authority of the Secretary to promulgate only

regulations that are “consistent with [the] laws." The six-year

history of the Court of Veterans Appeals reflects an inability or

unwillingness on the part of the VA to conform its practice to

judicial review. Under the circumstances, the standard set by |

the Federal Circuit is entirely appropriate. In any event, this a

standard does not preclude deference to VA regulations under | a

appropriate circumstances. : 4

REASONS FOR DENYING THE PETITION

The decision of the Court of Appeals is correct and reflects

a routine application of well-recognized principles of statutory

construction. The asserted economic impact of that decision does

not merit review by this Court.

1. The statute unambiguously does not require a showing of

fault by the veteran as a predicate to Section 1151 compensation.

The Secretary argues that enactment of the VA's fault-based

regulation “involves a routine sort of statutory interpretation

that is not precluded by the 'plain' language of Section 1151."

(Pet. at 12). The Secretary contrives an argument that the words

"injury" and “as a result of" as used in the statute by Congress

are ambiguous and require the fault-based regulation. The VA,

however, has never asserted these arguments as support for the

regulation in the 66 years that preceded this litigation. The

Secretary is seeking deference to an interpretation which is a

“post hoc rationalization of government lawyers" and to an

“inference[] derived from reading between the lines of an agency

decision or excerpted from the brief of a government lawyer."

National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S.

__, 112 S.Ct. 1394, 1405 (1992) (White, J., dissenting); Motor

Co., 463 U.S. 29, 50 (1983).

Far from being a “routine sort of statutory interpretation,"

the Secretary's regulation is directly contrary to an unambiguous

statutory mandate that “would not warrant a different

construction" or deference to an ill-conceived formulation of

misguided agency policy. National Organization for Women, Inc.

v. Scheidler, 114 S.Ct. 798 (1994). The petition also ignores

the contrary position taken by the Solicitor General in this

Court's decision in Conroy v. Aniskoff, 507 U.S. __, 113 S.Ct.

1562 (1993), dealing with an interpretation of the Soldiers' and

Sailors' Civil Relief Act of 1940. In that case, the Solicitor

General as amicus curiae argued successfully as follows:

[T]he unambiguous text of Section 525

renders legislative history irrelevant.

* * * * *

And where “the statute's language is plain,

‘the sole function of the courts is to

enforce it according to its terms.'"

* * * * *

{E]ven if there were ambiguity in the

statute, it would have to be resolved in

favor of the service member “under the canon

that provisions for benefits to members of

the Armed Services are to be construed in the

beneficiaries' favor."

Brief for the United States as Amicus Curiae at 6, 9-10, and 21-

22, Conroy v. Aniskoff, 507 U.S. , (1993) (No. 91-1353)

(citations omitted).

Under 38 U.S.C. § 501(a) the Secretary is empowered only to

enact regulations “necessary and appropriate to carry out the

laws administered" and which are "consistent with those laws."

This Court has previously reviewed the Secretary's authority

under this statute and invalidated a regulation which ceastdeusell

impermissible legislation by the VA. Miller v. United States,

294 U.S. 435, 439-440 (1935). That is exactly what the

Secretary's enactment of Section 3.358(c)(3) constitutes in this

case.4

The structure of the statute itself presumes a no-fault

basis in that compensation "shall be paid" for injury suffered

"as a result of" four different circumstances: (1) hospital-

ization; (2) medical or surgical treatment; (3) the pursuit of a

course of vocational rehabilitation; or (4) the conduct of

medical examination required by any provisions of Title 38. The

VA fault requirement for medical care in one category is

inconsistent with the absence of a requirement for fault in the

other three categories. There are only two limitations to the

mandatory grant of service-connected benefits under the statute,

both of which deal with causation only. First, the injury or

aggravation of an injury must be "as a result of" one of the four

circumstances enumerated. Second, benefits are not available to

a veteran where the cause of the injury is "the result of such

‘ The Court of Veterans Appeals struck down the

regulation under its own Congressional mandate to "hold unlawful

+ « »« regulations issued or adopted by the Administrator...

found to be in excess of statutory .. . authority... or in

violation of statutory right." 38 U.S.C. § 7261(a) (3) (C).

a, ag

7 ?)

on =

veteran's own willful misconduct." While there are a

multiplicity of additional factors -- including fault on the part

of VA personnel or "accident" however defined -- which might be

expected to operate in any of the four circumstances, none are

mentioned in the statute as grounds for limiting the mandatory

obligation of the Secretary to treat such injuries as service-

connected. Nor is there an explicit or implicit grant of

discretion to the Secretary to withhold service-connected

benefits where the terms of the statute are met.

The simple and straightforward language of the statute is

reinforced by the overall structure of the statutory scheme of

veterans benefits. See Bethesda Hospital Assn. v. Bowen, 485

U.S. 399, 403-405 (1988). The parallel statutory provisions of

Sections 1110 and 1131 governing entitlement to disability

compensation for conditions arising out of wartime and peacetime

service do not require the veteran to prove fault on the part of

the service department, although their terms are nearly identical

to Section 1151. Compensation entitlement is established under

those sections as long as there is a simple temporal relationship

between the incurrence of the disability and a period of active

service. 38 U.S.C. § 105. In this regard, Section 1110 provides

a guarantee of compensation to active military personnel for

"disability resulting from personal injury suffered or disease

contracted in line of duty .. . during a period of war."

Similarly, Section 1131 provides a guarantee of compensation for

active military personnel for "disability resulting from personal

injury suffered . . . during other than a period of war." Both

Section 1110 and Section 1131 contain the allegedly ambiguous

word “resulting” -- which, according to the Secretary, offends

the plain meaning of Section 1151. Yet under these statutes, a

veteran who suffers a surgical injury while in service receives

service-connected compensation after discharge without proof of

fault.

The Secretary has not promulgated any regulations

incorporating a fault element into Sections 1110 and 1131. On

the contrary, the VA has promulgated a regulation which

guarantees compensation under Sections 1110 and 1131 for all

disabilities which proximately flow from the original wartime or

peacetime disability, also on a strictly no-fault basis. See 38

C.F.R. 3.310(a). Under these statutes and regulation, a veteran

who receives treatment for a service-connected condition and

suffers an additional injury, such as the one Mr. Gardner

suffered, would receive compensation benefits for the surgical

injury without being required to demonstrate fault.®

‘The outcome of the interplay of the Secretary's regulations

-- imposing a fault requirement on Mr. Gardner but not on those

who have service-connected injuries -- is that a veteran may

obtain further compensation for disability caused by medical

. The Secretary acknowledges this difference in his

petition at 6 n.3, but he asserts that Section 1151 is to be

distinguished from Sections 1110, 1121, and 1131 benefits based

on the fault requirement. However, the four statutory provisions

are virtually identical in form and wording. The fault

requirement imposed on Section 1151 claims is derived solely from

the Secretary's regulation and not the Congressional scheme.

treatment without fault only if the original disability for which

care was sought is service-connected. However, a veteran

identically situated -- but for the fact that the disability for

which he seeks treatment is not service-connected -- may not

receive service-connected compensation for the new disability

caused by medical treatment, unless the veteran meets the complex

burden of proving that a departure from standard medical practice

caused the new disability. The disparity is highlighted by the

fact that the veteran seeking treatment in a VA facility for a

service-connected disability may have incurred that disability

while on leave from active duty. For example, if Mr. Gardner --

while on active duty but on leave -- had slipped and fallen on

the steps of his trailer home and suffered a herniated disc, any

“bad result" of the subsequent in-service or post-service surgery

would be treated as service-connected.

Because it is rational and proper to treat these two cases

alike, it is reasonable to assume that Congress intended this

result. Both veterans are compensated for the “bad result" of

their medical care on a no-fault basis. That was the primary

focus of Congress. In any event, as Chief Judge Nebeker

recognized, it cannot be said that such an intent on the part of

Congress was “impossible” or clearly absurd. (Pet. App. at 26a,

citing Public Citizen v. U.S. Department of Justice, 491 U.S.

440, 470-71 (1989) (Kennedy, J., concurring)). Nor is there any

evidence of a contrary legislative intent to treat these classes

differently. In his petition, the Secretary never addresses the

complete lack of evidence that Congress intended to treat the =

hospitalized veteran and the active duty person differently under —

identical circumstances. On the contrary, in 0.G.C. Precedent om

Opinion 80-90 (July 18, 1990), his own General counsel stated

that Congress did not intend there to be a distinction between

recipients of so-called "“quasi-service-connected" benefits under

Section 115’ and recipients of benefits under Sections 1110 and

1131. “If Congress had intended to preclude such payment, it

would have expressed recognition of the inconsistency by

specifically excluding such class of claimants." (C.A. App. at

124)°

The Secretary also argues that the word “injury” in the

statute "could well include some connotation of fault or of an

unforeseen and untoward occurrence." (Pet. at 10-11). As an

argument that the statute is ambiguous, it is weakly put. The

Secretary asserts that “no single dictionary definition can by

itself supply an unambiguously correct meaning for the word in

its statutory context." (Pet. at 11) (emphasis supplied). This

begs the question. The "correct" meaning of the word “injury” --

whatever that may be in the view of the Secretary -- does not

require or even suggest imposition of a fault requirement in the

statute. Nowhere in the companion provisions of Section 1110 and

1131 -- or in the multiple provisions of the statutory scheme

where the word is used elsewhere -- has either Congress or the

a A Precedent Opinion of the General Counsel is

conclusive within the Department on the issue addressed. 38

C.F.R. § 14.507.

Secretary seen fit to remedy this supposed ambiguity in the word

“injury.” For example, Congress employed a common sense use of

the word “injury” to define “aggravation” in the statute: "A

preexisting injury or disease will be considered to have been

aggravated . . . where there is an increase in disability

eae ” 38 U.S.C. § 1153. The key to the application of

Section 1151 is actually to determine whether the veteran has

suffered an increase in disability. Under 38 C.F.R. §

3.358(b) (1) the VA simply conducts a comparison of the veteran's

condition before the surgery with his condition after the surgery

to determine whether there is additional disability, a

fundamentally straight-forward process the VA engages in every

day.

The Secretary seems to argue that the words "as a result of"

also create an ambiguity. (Pet. at 11). However, there is no

explanation by the Secretary as to why these words are ambiguous

in and of themselves. Instead, the Secretary suggests that "it

is by no means self-evident from the statutory text alone" that a

statistical percentage of adverse complications resulting from

appropriate treatment should be compensated. (Pet. at 11).

Compensation for adverse surgical outcomes, however, is exactly

what the text of the statute requires. And, indeed, that is

exactly how the statute was administered at least in the first

two years after its enactment. While the Secretary might believe

that this outcome "should" be precluded, Congress has thus far

not acted on his last request to amend the statute. See S. 2383,

102d Cong., 2d Sess. (1992); 138 Cong. Rec. S4040 (daily ed.

March 20, 1992).’

The courts below agreed that the omission of an element of

fault in the statute is no everett. The 1924 precursor of

Section 1151, Section 213 of the World War Veterans’ Act, Public

Law No. 68-242 (1924), was presented as a bill to amend the "war

risk insurance" act. Hearings Before the House Committee on

World War Veterans' Legislation, 68th Cong., 1st Sess. 113 (1924)

[1924 Hearings). Section 213 was clearly characterized at its

inception as remedial legislation. See S. Rep. No. 397, 68th

Cong., ist Sess. 5 (1924). That the statute was part of an

insurance program fortifies the observation of both courts below

that Congress designed a no-fault scheme "given its experience in

enacting legislation concerning both common law negligence and

the no-fault approach to liability." (Pet. App. at 8a, 26a).

That Congress considered and rejected the concept of

relative fault on the part of VA medical personnel is clear from

the single exclusion of compensation benefits where the veteran

is guilty of “willful misconduct." This demonstrates that the

veteran is protected against even his own simple negligence, even

Ly The VA's concern that compensation may be required for

the amputation of a gangrenous leg to save the veteran's life is

inappropriate. Not all disabilities which exist after medical or

surgical treatment are compensable. If the resultant condition

_is the product of the "continuance or natural progress of disease

or injuries for which the . . . hospitalization, etc., was

authorized," that disability does not occur "as a result of" the

medical or surgical treatment. 38 C.F.R. § 3.358(b) (2).

Compensation is also denied where the additional disability is

“merely coincidental" with the treatment. 38 C.F.R. §

3.358(c) (1).

though contributory negligence was a standard defense in fault-

based systems in 1924. This no-fault approach is also consistent

with both state and federal worker's compensation schemes.

Congress cannot have overlooked a requirement of fault on the

part of the VA where it carefully crafted such a modest exclusion

to compensation based on the willful misconduct of the veteran.

“Where Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion." Russello v. United

States, 464 U.S. 16, 23 (1983).

As the Solicitor General made clear in his brief as amicus

curiae in Conroy v. Aniskoff, even if there were ambiguity in the

statute, the Secretary is obligated to resolve that ambiguity in

favor of the veteran “under the canon that provisions for

benefits to members of the Armed Services are to be construed in

the beneficiaries' favor." King v. St. Vincent's Hosp., 502 U.S.

___, 112 S.Ct. 570, 574 n.9 (1991). See also Fishgold v.

Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946); Boone

v. Lightner, 319 U.S. 561, 575 (1943). Indeed, in a similar

context as we indicated above, the Secretary has recognized and

applied this precept to the benefit of veterans. See 0.G.C.

Prec. Op. 80-90 (July 18, 1990), citing Tcherepnin v. Knight, 389

U.S. 332, 336 (1967). His failure to have even considered this

precept in this case is at least puzzling.

ae i md

Finally, the fault requirement of the regulation is

inconsistent with the entire policy of VA compensation as

recognized by decisions of COVA and by enactments of Congress.

The veteran is entitled to the benefit of the doubt in all

proceedings. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (1990);

Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The VA is required

to apply a broad and liberal interpretation to its rules. 38

C.F.R. § 3.303(a). The VA has a duty to assist the veteran in

the investigation and presentation of his case before the VARO |

and the BVA. 38 U.S.C. § 5107(a); Murphy v. Derwinski, 1

Vet.App. 78 (1990). Independent expert medical opinions are

available in some cases. 38 U.S.C. § 5109. Congress has also

concluded that for certain medical conditions, the veteran is

entitled to a presumption of service connectedness in evaluating

entitlement to compensation. 38 U.S.C. §§ 1112, 1116. Imposing

the complex burden of proving malpractice as a predicate for

compensation is at odds with the entire VA system of benefits.

2. As the Court of Appeals correctly observed, "(r]jecourse

to the legislative history of [section 1151] is unnecessary in

light of the plain meaning of the statutory text," quoting Darby

vy. Cisneros, 509 U.S. __, 113 S.Ct. 2539, 2545 (1993).

While resort to legislative history is not justified in this

case, even that history does not manifest a "clearly expressed

legislative intent to the contrary" of the plain meaning of the

statute that might warrant a different construction. National

Organization for Women v. Scheidler, 114 S.Ct. at 806, quoting

19 °

Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.

102, 108 (1980). There is no such legislative mandate in this

case. Indeed, at best the Secretary argues that the legislative

history “raises at the very least a significant question as to

whether Congress intended to enact a no-fault compensation

scheme." (Pet. at 12). Such admitted ambiguity in the

legislative history cannot justify review in this case.

The Secretary concedes in this Court, as he has throughout

this litigation, that the legislative history surrounding the

original enactment of the statute in 1924 supports both a no-

fault s e and a fault based scheme. (Pet. at 13). Of course,

a no-fault scheme necessarily includes compensation for fault.

ne the contemporaneous evidence of congressional intent

surrounding the 1924 enactment supports enforcement of the plain

language of the statute. The secretary, however, argues that the

regulations enacted by the VA in 1926 and 1927 disclose a

contemporaneous intent by the agency to require fault. (Pet. at

13-14). Even assuming these regulations are "contemporaneous"

with the 1924 enactment, the Secretary parses these three

regulations improperly. Regulations Nos. 137, 157, and 167 do

not definitively preclude recovery in the absence of proof of

fault or accident. ‘Regulation No. 137 essentially precludes

recovery for conditions arising out of the natural progress of

the disease or injury being treated and acknowledges that

recovery is available for additional injury resulting from

treatment “improperly given." (C.A. App. at 102). There is no

requirement that fault be shown as a predicate to compensation.

While No. 157 permits recovery in instances of fault, it does not

preclude recovery in the absence of proof of fault. Regulation

No. 167, on the other hand, actually liberalized the standard

under No. 157 by providing that "(t)he usual after results of

approved medical care and treatment properly administered will

not be held as entitled to payment." (C.A. App. at 104). The

Federal Circuit was correct to observe the lack of precision in

this language and further observed that "it does not appear that

funder any of these regulations] the VA actually excluded

disability claims where the veteran could not prove fault or

accident," citing two opinions of the Attorney General and an

opinion of the Comptroller General. (Pet. App. at 14a). The

court also noted that the VA did not take the position that proof

of fault was an absolute prerequisite until August 1934. (Pet.

App. at 16a).

The Secretary cites for support two adjudicatory opinions of

the VA from 1928 and 1930 and the same Comptroller General

opinion referenced by the Court of Appeals. While the Secretary

cites these VA adjudications to suggest that the practice of the

VA was to employ a fault-based methodology (Pet. at 14), those

findings actually deal only with the causation issue. 65 Op. VA

Gen Coun. 429 (1930); 50 Op. VA Gen. Coun. 439 (1928) .® They

8 Claim of Frank McKeown deals with a veteran whose

fingers were severed when they were slammed in a door. Claim of

William Concannon deals with emergency dental care. Neither

turns on the issue of fault. There is no other evidence cited by

the Secretary in support of his claim that the VA actually

y ‘ .!

, as + aa

. bi sates © * gett. ¢ eee eee

are entirely consistent with opinions of the Attorney General of

the United States rendered in response to requests for legal

advise from the Secretary, upon which the Federal Circuit relied.

See 35 Op. Att'y Gen. 76 (1926); 36 Op. Att'y Gen. 61, 63 (1929);

Pet. App. at 14a. Intentional departures from the statutory

mandate and from the opinions of the Severney General do not

create the kind of consistent agency practice which is entitled

to deference. Suffice to say, the conclusions expressed in these

early proceedings hardly constitute contemporaneous evidence of a

Congressional intent explicitly at odds with the plain language

of Section 1151.° -

Since the contemporaneous evidence surrounding the enactment

in 1924 supports the plain language reading of Section 1151, the

Secretary must rely exclusively on the argument that the 1934

reenactment implicitly adopted a fault-based analysis because

that reenactment was "against the backdrop of a well-established

fault-or-accident requirement" supposedly set forth in the three

regulations promulgated in 1926 and 1927. (Pet. at 15-16). The

qeerétenry*s regulation cannot be saved in this case by employing

the fiction that Congress is presumed to know of, and thereby to

have adopted, an agency's interpretation when it re-enacts a

statutory provision without change. When a regulation conflicts

required proof of fault prior to August 1934.

° In the Comptroller General Opinion upon which the

Secretary relies, the decision actually awarded benefits to the

veteran who had developed dermatitis as a result of hospital x-

rays without showing of fault. 9 Comp. Gen. 515 (1930).

with the statute, the fact of subsequent reenactment of the

statute is immaterial, for Congress could not add to or expand bs

the statute by impliedly approving the regulation. See Leary v. Ee

United States, 395 U.S. 6, 24-25 (1969), citing Commissioner vy. ~

Acker, 361 U.S. 87, 93 (1959). This Court has also noted that it a

is not realistic to infer approval of an administrative

interpretation from Congressional silence. See United States v.

Rutherford, 442 U.S. 544, 554 n.10 (1978). Reenactment is not

proof of approval where there is no evidence that Congress gave

any particular consideration to the Secretary's regulation during

reenactment of the statute. See Rowan Cos. v. United States, 452

U.S. 247, 262 (1981); United States v. Calamaro, 354 U.S. 351,

359 (1957). Indeed, where the focus of Congress is on matters

other than the agency's regulation, the failure to overturn the

agency's regulation clearly falls short of supporting a

construction at odds with the statute's plain meaning. See Aaron

v. SEC, 446 U.S. 680, 694 n.11 (1980). As this Court has often

noted, it is at best treacherous to find in Congressional silence

the adoption of a controlling rule of law. See Zuber v. Allen,

396 U.S. 168, 185 n.21 (1969).

The only support for this reenactment argument the Secretary

musters is isolated and cryptic comments by a single senator in

1934. (Pet. at 15). Once again, however, the Federal Circuit

found that the senator's discussion “expressed the same

commitment to compensation as that present in the discussion

preceding the enactment of the 1924 Act." (Pet. App. at 15a).

Again, .the evidence of the existence of a fault-based agency

interpretation at reenactment in 1934 is no stronger than that

surrounding the original enactment in 1924. Therefore, the Court

of Appeals was correct not to attribute any significance to the

reenactment of the statute insofar as it relates to the validity

of the Secretary's regulation today. 1° Indeed, this is the

same conclusion that the VA General Counsel reached in his most

recent discussion of the history of Section 1151. "[Tjhe

legislative history surrounding reenactment of this provision

must be considered somewhat ambiguous." 0.G.C. Precedent Opinion

No. 99-90 (December 24, 1990) (C.A. App. at 109).

Congressional silence as the statute was amended four times

since 1934 similarly does not justify disregarding the clear

language of the statute. First, the amendments had nothing to do

with the fault concept. Second, the 1962 amendment actually

supports the plain meaning given the statue by the courts below.

In that year, Congress removed the two-year period of limitations

for Section 1151 claims and required an offset for amounts

recovered by a veteran under the Federal Tort Claims Act, which

is a fault-based statute. 28 U.S.C. § 1346(b). That change

makes clear that Section 1151 benefits and a veteran's rights

under the FTCA are compatible but not identical. The FTCA

requires fault, has a circumscribed period of limitations, has a

right to trial before an Article III judge, and would entitle a

10 The Secretary's argument that the "historical context"

of the 1934 reenactment supports his view is sociological

conjecture. (Pet. at 16 n.7).

veteran to compensation for pain and suffering and lost wages —

upon a showing of malpractice. On the other hand, Section 1151 ‘

contains none of the restrictions of the FTCA but provides a more

limited range of compensation. It is not logical to conclude | |

that where Congress carefully prescribed the terns under which it |

would waive the sovereign immunity of the United States under the

FTCA in 1946, it previously intended to impose similar

limitations on Section 1151 benefits by its silence. As the

Federal Circuit observed: |

{Tjhere is no indication whatsoever in the .

legislative history or in the resulting

legislative enactment that Congress intended

to place on the veteran the complex and

difficult burden of proving that negligence

or an accident actually occurred during

treatment as a condition to compensation.

(Pet. App. at 17a). Where Congress has desired to express a

fault requirement as in the FTCA, that intent is made

unmistakably clear.}?

The final word on whether Congress has impliedly adopted the

VA fault-based interpretation of Section 1151 also comes from an —

opinion of the VA's own General Counsel. In March of 1984, the

General Counsel was asked whether Section 1151 benefits would be

available to a veteran injured by medical treatment in a military

hospital under VA auspices, as opposed to claims arising in VA

medical facilities. On the issue presented the General Counsel

observed as follows:

11 This Court has held that the existence of Section 1151

benefits does not preclude a negligence action under the FTCA.

United States v. Brown, 348 U.S. 110 (1954). 4

Over the years, Congress has amended

section 351 [current section 1151] and its

predecessors but has not sought to challenge

VA's interpretation by amendment or

otherwise. It may, therefore, be urged that

Congress has impliedly approved the

requirement of VA error or fault in the

current regulation. Although we would not

rule out resort to this rule of sta” tory

construction in a proper case, we do net

a_ court would agree. Kirkhuff v. Nimmo, 683

F.2d 544 (D.C. Cir. 1982), is an excellent

guide to obtaining judicial deference to our

interpretations.

x reke*eek

We do not believe a court would accord a

similar deference to the interpretation in

question here. In Kirkhuff, the statutes

- « « were arguably inconsistent,

necessitating resort to rules of statutory

construction. That is not the case here

where the interpretation is a gloss on a

fault. Also, in Kirkhuff, there was an

unambiguous history of administrative

consistency, which cannot be said of the VA

decisions involving section 351 and its

predecessors. We believe a court would, in

the absence of affirmative congressional

VA's foreclosure of liability in this case.

0.G.C. Digested Opinion 212B (March 8, 1984) (emphasis supplied).

3. Because the statute is plain on its face, the Court of

Appeals did not err in refusing to defer to the Secretary's

asserted long-standing interpretation of the statute... In any

event, no agency is entitled to deference to a history of

inconsistent and ambiguous interpretations of a statute. Burnet

v. Chicago Portrait Co., 285 U.S. 1, 16-17 (1932). See also EEOC

v. Arabian American Oil Co., 499 U.S. 244, 257 (1991);

Southeastern Community College v. Davis, 442 U.S. 377, 411-12

(1979); National Muffler Dealers Ass'n, Inc. v. United States,

440 U.S. 472, 477 (1979); Morton v. Ruiz, 415 U.S. 199, 237

(1974). The history of the so-called “long-standing” fault-based

interpretation of Section 1151 is set forth in 0.G.C. Precedent

Opinions 2-78 and 99-90 (C.A. App. at 105, 126), which depict an

agonizing maze of ineffective efforts to define what is meant by

"accident" in order to ameliorate the restrictive fault-based

gloss placed on the statute by the VA. As the General Counsel

conceded in his 1984 opinion cited above, the history of the VA

interpretation of Section 1151 is so inconsistent it does not 5

The two VA General Counsel Precedent Opinions demonstrate

that when the 1924 Act was initially applied in the field, those

adjudications employed the literal language of the act.

Therefore, decisions were rendered on the premise that

“compensation was payable under section 213, irrespective of

whether there was any fault on the part of the Bureau personnel."

Memorandum of the Solicitor, October 24, 1935, at 3 (C.A. App.

109). Thereafter, however, numerous efforts were made by

regulation and precedent opinion to restrict benefits to cases of

"accident" or fault. All of these efforts can be traced to a

single comment by General Hines in the 1924 hearings which

incidentally had no bearing on the actual language of the 1924

Act:

[Ijn cases of hospitalization for

compensable diseases or injuries, where

without fault of the patient, as the result

of accident or negligence of treatment or

unskillfulness -- things that must sometimes

-- the patient is further injured or

disabled, there is at present no provision

for compensating him to the extent thereof.

1924 Hearings at 113 (emphasis supplied).

While it is apparent that General Hines was using the word

"accident" to denote a no-fault outcome in contrast to negligence

-- as COVA observed in its decision below (Pet. App. at 28a) --

the subsequent interpretations given the term "accident" by the

VA attempt to identify a category of cases somewhere between no-

fault and negligence. Regulations Nos. 137, 157, and 167 are

themselves examples of failed attempts to define this notion.

Indeed, in 0.G.C. Precedent Opinion 99-90, the General Counsel

acknowledged that the reference to "accident" by the Comptroller

General dec¥sion reported at 9 Comp. Gen. 515 (1930), which drove

these definitional efforts, was actually “gratuitous and largely

irrelevant obiter dictum." (C.A. App. at 111). That

interpretation nevertheless was carried over in Administrator's

Decision No. 255 (August 9, 1934), which first concluded that

benefits were payable only when the injury arose through

accident, carelessness, or negligence. Id.

This view was altered yet again in July of 1953 when the VA

Solicitor explained that benefits were payable only if injury was

caused by “accidental means." (C.A. App. at 112). There is no

explanation in the 1990 Precedent Opinion as to what this

modification meant in the context of Section 1151 benefits. The

; ae

regulation was modified yet again in 1961. In the 1978 Precedent —

Opinion, the General Counsel concluded that the 1961 regulation

accepted the “ordinary meaning of the word ‘accident' [as] x

opposite that of 'negligence.'" (C.A. App. 112). It is again

not clear that the 1961 regulation, however, was meant to provide

compensation in no-fault circumstances as “opposite that of

negligence." In the 1978 amendment to the regulation, generated

by the General Counsel's expressed dissatisfaction with the 1961

interpretation, the concept of “accident” as opposite

"negligence" was translated into a new definition of "accident"

as “any unforeseen, untoward result." (C.A. App. at 130); 43 .

Fed. Reg. 51015 (November 2, 1978). Yet in 1990, the General ;

Counsel concluded that even that definition did not “allow grants |

of benefits in certain cases we believe fall reasonably within

the realm contemplated by Congress when creating this benefit."

0.G.C. Prec. Op. 99-90 (C.A. App. at 113). Believing that even

the 1978 definition -- the current provision involved in this

case -- “is too restrictive in view of the legislative history"

of Section 1151, the Secretary has proposed yet another

regulation re-defining the notion of “accident” to prevent unfair

results in adjudicating Section 1151 benefit claims. That new

regulation has not been adopted. However, the terms of that

regulation were included in the failed legislative amendment

proposed by the Secretary in response to the decision of COVA in

this case. See S. 2383, 102d Cong., 2d Sess. (1992).}?

Therefore, rather than demonstrating a long-standing agency

interpretation of a statute, VA history reveals no less than

eleven different definitions or interpretations of the word

"accident" even though that word appears nowhere in the statute.

The VA does not even believe that the regulation as it exists

today accurately reflects Congressional intent. The problem is

aptly summarized by the General Counsel himself in the 1978

Precedent Opinion: “Some of the difficulty seems to have

resulted from the fact that administrative officials have not

construed the language of the statute literally in determining

whether benefits were payable. ..." 0.G.C. Prec. Op. 2-78 at 3

(C.A. App. at 128).

4. This Court should not review the Federal Circuit's

eminently reasonable conclusion that regulations of the VA should

be subject to “vigorous review." (Pet. App. at 20a).

As the Federal Circuit recognized, Section 1151 benefits

constitute a potential “statutory right" conferred by Congress.

(Pet. App. at 21a). The Secretary may not regulate away those

rights by using his limited authority to enact regulations under

38 U.S.C. § 501. That authority does not include the right to

i2 It is interesting to note that in support of that

legislative amendment to Section 1151, the Secretary opined that

the decision in this case would cost $5 billion in the next five

years. 138 Cong. Rec. S4040 (daily ed., March 20, 1992). Now

before this Court that figure is down to $1 billion. (Pet. at

19).

enact substantive regulations affecting individual rights in a

manner which is at odds with the administrative structure

Congress has enacted into law. See ETSI Pipeline Project vy.

Missouri, 484 U.S. 495, 517 (1988). This Court has made clear

that VA regulations which are inconsistent with Congressional

statutes constitute impermissible legislation. Miller v. United

States, 294 U.S. at 439-440. Where Congress intends to permit

such substantive rule-making by the VA, it specifically so

provides. See, e.g., Veterans Dioxin and Radiation Exposure

Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725

(1984). f

There is no reason to require a less restrictive review of

such regulations than that enunciated by the Federal Circuit.

The very reason for the creation of the Court of Veterans Appeals

was the history of ineffective and unfair VA adjudication of

veterans' benefits. As Senator Cranston stated in support of

creation of the Court of Veterans Appeals:

[A]nother basic reason for judicial review

legislation is the need to establish a basis

for review of questionable agency actions

restricting, withholding, or withdrawing VA

benefits. ... There is also the potential

for unduly restrictive legal opinions from

the Office of the General Counsel which may

operate to deny veterans access to benefits

to which they are entitled under the law.

zx rereeek

I am suggesting that outside review by an

independent entity to determine whether

governmental action is legal and whether it

is fundamentally fair would benefit all

parties involved. The VA would have its

processes subjected to appropriate scrutiny

and, to the extent the agency's actions were

upheld, would be vindicated. Likewise, to

the extent the agency's actions were held

unlawful or fundamentally unfair, steps could

be taken to improve the process so as to

ensure that the agency is fulfilling its

mission to serve veterans in the best

possible fashion.

134 Cong. Rec. 31465 (October 18, 1988).

This vigorous review is also shown to be justified by the

jurisprudence of the Court of Veterans Appeals in the six years

of its life. COVA has repeatedly criticized the VA for its

misinterpretation of Congressional statutes and for VA's

intransigence and reluctance to conform its practices to the

realities of judicial review. For example, in Jones v.

Derwinski, 1 Vet. App. 596 (1990), the VA had to be enjoined from

directly contacting represented veterans and from providing to

veterans outdated and erroneous information. The Secretary was

also sanctioned for not promptly correcting an inaccurate

representation made to the court upon discovery of that

inaccuracy. In Fugere v. Derwinski, 1 Vet. App. 103 (1990),

aff'd 972 F.2d 331 (Fed. Cir. 1992), COVA held that the VA could

not rescind a protective directive from its adjudication manual

without public notice and comment. In Tobler v. Derwinski, 2

Vet. App. 8 (1991), COVA was obligated to direct the VA to apply

the decisions of the court as precedent in adjudicating Claims at

the regional offices and before the BVA. In Hines v. Derwinski,

2 Vet. App. 30 (1991), COVA issued a show cause order as to why

costs should not be granted against the VA for failing to respond

to a veteran's record request for over six years. In Adamski v.

Derwinski, 2 Vet. App. 46 (1991), COVA sanctioned the VA for

dilatory tactics in failing to file the record on appeal when

ordered. In Moore v. Derwinski, 2 Vet. App. 67 (1992), COVA

ordered the Secretary to show cause why he should not be subject

to contempt for failing to pay benefits as ordered by the court.

In King v. Brown, 4 Vet. App. 519 (1993), COVA complained of the

VA failure to provide an accurate and relevant record and basis

for decisions on appeal.

These and numerous other decisions make clear that judicial

review of VA's regulations and adjudicatory practices was sorely

needed. As the Federal Circuit noted, Congress's lengthy

deliberation over the Veterans' Judicial Review Act, and its

carefully crafted scheme for judicial review of VA regulations,

counsels for “vigorous review." There is nothing about that

language which contravenes precedent of this Court or prohibits

aries to the Secretary where appropriate.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Drerrbect Me nnen)

Jogeph Michael Hannon, Jr.*

WUliam S. Mailander

Attorneys for Fred P. Gardner

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.