On February 1, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) heard a consolidated appeal, Ward (No. 16-2157), Neal NO. 17-1204 v. Wilkie, and decided it on Jun 14, 2019.

DAVIS, Chief Judge:

Both cases in this consolidated appeal involve the correct legal standard for
assessing an increase in disability of a non-service-connected condition “proximately due to or the result of a service-connected disability” ²

The merits issue for panel consideration arises from Board instructions to VA examiners in both cases that “aggravation” of a non-service-connected
condition required a “permanent worsening” of that secondary condition.

The Secretary apparently imported this requirement from law pertaining to the presumption of aggravation for conditions preexisting service.³
The Secretary has incorporated the “permanent worsening” requirement into the VA Adjudication Procedures Manual, effective November 30, 2017.⁴

The Court concludes that the Secretary’s imposition of the “permanent worsening” standard is an impermissible attempt to add requirements that appear in neither the enabling statute ⁵nor in the implementing regulation for secondary service connection.

Footnotes

2. See 38 C.F.R. § 3.310(b) (2018). Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

3. See 38 U.S.C. § 1153; Aggravation

38 C.F.R. § 3.306 (2018). Aggravation of pre-service disability

4. VA ADJUDICATION PROCEDURES MANUAL (M21-1), pt. III, subpt. iv, ch. 6, § B(5)(a).

5. See 38 U.S.C. § 1110. Basic entitlement

6. See 38 C.F.R. § 3.310. Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

It appears that VA wants to serve up some rule-revenge to the CAVC and Veterans for their ruling. They boldly say they want the rule to supercede the CAVA’s decision in Ward. Cancel culture–VBA canceling CAVC.

“The Ward case, which the VA attempts to overturn through this proposed rule, provides a case law. The decision also makes clear that the recitation of the history and application of the relevant provisions and language VA seeks
to impose is not anchored in statute, thus it is unclear that these rules could survive a challenge under the Supreme Court’s recent clarifications on deference to agencies.”

Carl Blake
Executive Director, Paralyzed Veterans of America

Online Regulations.gov: LONG https://www.regulations.gov/document?D=VA-2020-VBA-0021-0001. See: Part II, 6th paragraph

“…VA did not intend this divergence, and its proposed revisions to realign the two standards of “aggravation” will supersede the effect of the Veterans Court’s recent holding in Ward v. Wilkie based on a change in the underlying regulatory text.

Question: Is VA intentionally and publicly refusing to implement CAVC’s decisions?

There are about 32 comments in Response to RIN 2900-AQ80, Aggravation Definition, with excellent responses from NOVA, Paralyzed Veterans of America, Veterans of Foreign Wars, Legal Services Center of Harvard Law School & Chisholm Chisholm & Kilpatrick LTD, Disabled American Veterans, Fulton County Veterans Service Agency, National Law School Veterans Clinic Consortium and others. Find links to letters here:

https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=VA-2020-VBA-0021

The Impact Statement is appalling. Can it be true that they want this rule to save 68 million, over 5 years.

VA was forced to add Ward, Neal v. Wilke to the raters guidance book: VA ADJUDICATION PROCEDURES MANUAL (M21-1), pt. III, subpt. iv, ch. 6, § B(5)(a).

Additional information

In paper FR: Federal Register 85 FR 56189

Regulation Identification Number (RIN) 2900-AQ80

Hadit.com posted the proposed rule in the Federal Register.

Ward, Neal v. Wilkie, Jun 14, 2019, 31 Vet.App. 233 (2019)
Article ID: 554400000121972

http://www.uscourts.cavc.gov/documents/WardLM_16-2157%20(3).pdf

https://www.va.gov/ORPM/FY_2020_Published_VA_Regulations.asp

A 21st Century System for Evaluating Veterans for Disability Benefits
(2007)
Consensus Study Report

Read chapter 11 free online (register): https://www.nap.edu/read/11885/chapter/11

VA must withdraw this insult to the Court. I would urge you email your Congress and state veterans agency. A comment can be posted to Sec. Denis McDonough:

https://blogs.va.gov/VAntage/category/secretarys-blog/

Laura (Guest author)