Something that has been discussed numerous times in Veteran’s self-help forums is the difference between Chapter 38, United States Code and Chapter 38, Code of Federal Regulations.  We are often asked to clarify the difference. Here is the easiest way to remember it.

     38 USC is like the Second Amendment. It (the 2^nd Amendment) allows you to keep and bear arms without any codicils. It’s simple, straight forward and covers one subject-guns. 38 USC is a compendium of laws expressly formulated by Congress to deal with Veterans Law and Compensation. These are generic like the 2^nd Amendment…                                                    

http://www.law.cornell.edu/uscode/38/

      38 CFR is a set of regulations modeled loosely on 38 USC and clarifying the meaning as it applies to individual cases. Imagine the states all having unique laws associated with keeping and bearing guns. There are certain restrictions to the Federal Amendment. Where you can carry (bear)these arms is somewhat restricted for the safety of all. 38 CFR simply empowers the VA Secretary to implement the US Code written in Chapter 38, USC. The VA Secretary writes 38 CFR as he sees fit and must publish any changes in the Federal Register in advance before effecting change. If Congress doesn’t wig out, they are incorporated into 38 CFR. Later on if a Vet feels he is getting screwed, he appeals to the BVA and on up to the Court. The Court then is tasked with determining if the regulations, as written and interpreted by the VASEC, are too strenuous or simply being misapplied by the Secretary. If they find for the Veteran, and they do 70% of the time, the Secretary is henceforth required to do it their way and sometimes even rewrite the regulation to comport with the Court’s holding. Nowhere in VARO decisions will you find references to CAVC holdings. They don’t speak Latin and seem disinclined to learn how. 

http://www.law.cornell.edu/cfr/text/38/chapter-I

       M21-A1, the VA rater’s bible, deals only with 38 CFR. The BVA will discuss regulations in their decision and quote both the CFR as well as the USC statute it is predicated on. They will also incorporate holding of the Court into their decisions and cite to them for authority.The Court deals only with the US Code and bases all its rulings, for the most part, on how a statute is written and what is stated versus whatisn’t stated.  They compare the statute to the regulation and woe betideth the VA Secretary who reinvents a regulation. The Court only cites other CAVC and Federal Circuit cases. Occasionally they cite to the Supreme Court. 

     Cops like to complain about how lenient judges have a proclivity to let criminals walk free.  So too do the VASEC and the BVA/RO complain about how the Court constantly creates “loopholes”, windows, or unnatural interpretations that are harmful to Vets. Yes. You read that correctly. That’s the party line. Keeping in mind that the VA Secretary’s stated mission is to administer benefits to Veterans, how is it that he is always in an adversarial relationship with us? The unvarnished error rate hovers at 70% and no one argues with that figure. Is it poor judicial advice from his “czars” or the political posture of the current administration? We discount the latter suggestion because we have had this adversarial posture since the inception of the VJRA in 1988. Being in a Democratic or Republican administration seems to have no bearing on your claim success. The VASECs collectively have been working tirelessly since 1988 to deprive us of legitimate benefits that we inevitably win on appeal. Relax. Nothing has changed or gotten measurably better yet. We’ll be sure to let you know when that happens.