Wingard v. McDonald
2015 U.S. App. LEXIS 3684
| Fed. Cir. | 2015Background
- This case concerns review of the VA disability ratings schedule under 38 U.S.C. §7252(b) and §502, and whether the Veterans Court or this court may examine statutory compliance.
- The Veterans Court held §7252(b) did not preclude review of a non-compensable (0%) rating; the Veterans Court then deemed the rating reasonable.
- Wingard's daughter sought burial benefits under §2302(a)(1) based on Wingard's alleged entitlement to compensation.
- Wingard had a 0% disability rating since 1989 and never received disability compensation or a Veterans pension.
- The court concludes Congress precludes such statutory challenges to the rating schedule from both the Veterans Court and this court on appeal, directing review via direct rulemaking challenges under §502.
- The court vacates the Veterans Court decision and remands for disposition consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7252(b) bars review of the rating schedule on appeal. | Wingard argues the schedule violates statutory constraints. | Wingard contends the VA schedule can be reviewed for compliance. | Yes; §7252(b) bars review of the rating schedule in the Veterans Court. |
| Whether this court may review a non-reviewable Veterans Court decision under §7292 or §502. | Wingard asserts this court can review the statutory challenge via direct regulation review. | The government argues §7292(a) bars such review, and §502 does not override that bar. | This court cannot review the statutory challenge; §7292(a) bars such review. |
| What is the proper remedy after concluding Congress precluded both courts from review? | Wingard seeks reversal/remand for disposition consistent with statutory interpretation. | Respondent maintains dismissal or other disposition in light of preclusion. | Vacate and remand to implement disposition consistent with the ruling. |
Key Cases Cited
- Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004) (precludes review of rating-schedule content under §7252(b))
- Nyeholt v. Secretary of Veterans Affairs, 298 F.3d 1350 (Fed. Cir. 2002) (review of schedule constraints not permissible on constitutional challenge)
- Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (regulatory interpretation of schedule not reviewable here)
- Fugere v. Derwinski, 972 F.2d 331 (Fed. Cir. 1999) (procedural challenge to schedule regulations not at issue here)
- Byrd v. Nicholson, 19 Vet. App. 388 (2005) (recognition of §7252(b) limitations on review)
- Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (Supreme Court on Veterans' Court review framework)
- Jackson v. Brown, 55 F.3d 589 (Fed. Cir. 1995) (notes standards for regulation review under §502)