Can the USB Delegate Authority to Decide Radiation Claims?

Parrish: Can the USB Delegate Authority to Decide Radiation Claims?

James L. Parrish v. Eric K. Shinseki, Opinion Number 09-757, decided April 22, 2011 concerns a veteran’s challenge that the undersecretary for benefits (USB) can delegate authority to decide radiation claims to the C&P Director.

Disability claims involving in-service radiation involve a special adjudication process. These claims must be referred to the USB for consideration. The USB then forwards his decision with supporting rationale to the RO for adjudication of the claim. Here, the USB delegated the decision to the C&P Director and the veteran challenged this delegation because he believed 38 CFR 3.311 restricts the decision to the USB and regulatory history impliedly prohibited delegation. Simply put, the Court found the USB had a broad authority to delegate such decisions as provided by 38 CFR 2.6(b)(1).

Decided by Chief Judge Kasold and Judge Moorman and Judge Davis dissenting.