Wingard: The Veterans Court's Inability to Review the Rating Schedule

Wingard v. McDonald, Opinion Number 11-1214, was decided May 8, 2015 and concerns non-service connected burial benefits under 38 USC Section 2302, but is really instructive as to the Veterans Court’s jurisdiction to review the rating schedule.

The veteran had a hernia that was service connected but given a noncompensable rating.  The veteran’s daughter argued the noncompensable rating was at odds with the actual statute.  She then argued from this position that the requirement for a burial benefit was met because the phrase “in receipt of compensation” should be interpreted to include veterans who are entitled to receive compensation at death. 

In a prior decision, the Veterans Court held the statutory prohibition on judicial review of the content of the rating schedule did not preclude the Court from addressing the argument that the regulations are contrary to the plain and unambiguous language of 38 USC Sections 1110 and 1155.  But, then found the Secretary’s interpretation of the statute was reasonable.  On appeal the Federal Circuit found that 38 USC 7252(b) which discusses the Veteran Court’s jurisdiction prohibited the court from determining whether the rating schedule, by including a 0% disability, violates the statutory constraints.

On remand, the Veterans Court made its displeasure known at the Federal Circuit’s decision.  The Court admits Congress did not want piecemeal challenges to the rating schedule but states  the veteran argued that 38 USC Section 1155 specifically lays out 10 grades of disability beginning at 10% and does not authorize a 0% rating.  “The appellant does not seek to alter the substance of the Secretary’s regulations relating to a particular disability or second guess the Secretary’s absolute discretion to determine what warrants one of the 10 disability ratings authorized by section 1155.  Indeed, what if the Secretary were to adopt a schedule authorize a 15% or 17% disability rating, clearly contrary to the plain language of section 1155?  How could such a blatant violation of the clear wording of the statute be beyond our jurisdiction?”  Id. at *5.  “Thus, respectfully, we see the appellant’s issue not as a substantive challenge to the schedule as conflicting with the statute, but as a charge that the Secretary’s adopted schedule has exceeded the contours of the its enabling statute.”  Id. at *6.  However, the Veterans Court recognized it was bound by the Federal Circuit’s determination that it could not review the issue.

This is an interesting decision in that it both illustrates the fact the Court's cannot meddle with the rating schedule while also explaining clearly why some limited Court involvement is desirable.

Decision by J. Schoelen, joined by CJ Kasold and J. Pietsch.