*2 GAJARSA, Circuit Judge.
Opinion for the court by filed Senior Judge Circuit FRIEDMAN, in which Circuit Judge joins. RADER Concurring opinion filed Circuit Judge GAJARSA. FRIEDMAN, Senior Judge. Circuit A veterans association and individual veterans challenge regulations Department of Veterans Affairs (Depart- ment), 38 §§ C.F.R. 17.34-17.38, implement the Veterans’ Health Care Eligibility Reform Act 1996(Act), § Pub.L. codified at 38 § 1704 et seq. They assert U.S.C. the regulations deny veterans pro- due cess, are inconsistent Act, with the are arbitrary, capricious and an abuse of discretion. reject We these contentions deny petition for review. I The Act directs to es- tablish and operate an patient annual en- system rollment for providing hospital and medical care to veterans. 38 U.S.C. § 1705. The Act provides for the annual enrollment of individual veterans based upon the application veteran’s and the as- signment of the veteran one of seven specified priority categories. Zuckerman, Richard M. Rubin Baum The first three categories cover veterans Levin Friedman, Constant York, & of New degrees various of service-connected NY, argued for petitioners. With him on disabilities. 1705(a)(l)-(3). U.S.C. the brief was Jacob Inwald. Of on counsel “[vjeterans The fourth category is for who the brief were Weisman, James J. are in receipt of pension increased based Kleo King, J. Paralyzed Eastern Veterans on need of regular aid and attendance or Association, Ltd., of Heights, Jackson NY. by reason of being permanently house- Opher Shweiki, Trial Attorney, bound and Com- other veterans who are cata- mercial Litigation Branch, Division, Civil strophically disabled.” 38 U.S.C. Justice, DC, 1705(a)(4). of Washington, The fifth category is for vet- argued for respondent. With him on the erans who within one of the first brief were Cohen, David M. Director; and categories four and are “unable defray Bynum, Deborah A. Assistant Director. expenses of necessary care” as defined and med- hospital describes which by 38 to en- provided that will ical services covers category 1705(a)(5). sixth an- veterans; procedure categories rolled five the first not within bewill priority categories criteria, including nouncing which specified meet and who period, ensuing annual in- enrolled for disability that was “for discharge financial Department’s duty,” on line of based in the aggravated curred at 54212-54218. Fed.Reg. Heart, jections. “service Purple receipt of I,” discussion extensive includes The final rule or World War period border Mexican explains sub- received a toxic the comments exposed [were] “who conditions, response made in and not changes made radiation, stance, or other *4 38 statute.]” those comments. in the provided [elsewhere category 1710(a)(2). The seventh § U.S.C. announced time, Department the At that by preced- the covered is for veterans priority cate- all seven enroll it would that Depart- the for whom categories and ing period October for the of veterans gories need- care is that medical ment determines 2000, 30, unless September 1,1999 through 1710(a)(3). The statute U.S.C. ed. 38 by determination change this it had to provided bewill that medical provides 64 rulemaking announcement. subsequent 38 listed.” “in the order categories the to at 54213. Fed.Reg. published Department Subsequently, the Department directive, Directive VHA an amended for provide capacity to its] “maintain[ Vet- Catastrophically Disabled 2001-025: rehabilitative and treatment specialized 2001) (Directive 24, (Apr. Evaluation eran vet- (including veterans of disabled needs on “guidance 2001-025), provides blind- dysfunction, cord spinal erans request can a veteran by which illness) mental ness, amputations, cata- for evaluated and be ... a review of facilities or programs distinct within (CD) Di- status.” disabled strophically spe- to the dedicated are Department letters “sample includes rective 2001-025 man- in a those of needs cialized of a an outcome of notifying veterans for (A) reason- those veterans ner that affords disabled] evaluation [catastrophically those for and services to care able access disabled] [catastrophically a fact that (B) ensures needs, and specialized based completed not be could evaluation of capacity overall in the veteran’s on the information not reduced below is services such vide appoint- to schedule “how records” nationwide, to Department, of the capacity exami- disabled catastrophically ment of date services, [the of those also summa- 2001-025 Directive nation.” 1706(b)(1). enactment.]” disagrees veteran who of a right rizes either pub- evaluation 1998, 10, Department’s July On claim for rulemaking a denied of proposed notice reconsideration seek lished ap- com- 17.133 public invited 38 C.F.R. the Act under implement benefits Fed.Reg. 63 of Veterans’ rules. Board proposed directly to the on the peal ments 1998). § 1705. 10, 38 C.F.R. (July pursuant Appeals “EXPIRES states The directive October On 30, 2006.” APRIL codi- rules, which were the final published 64 Fed. §§ 17.34-17.38. 38 C.F.R. fied at II 1999). (Oct. 6, Reg. challenging review petition disenrollment the enrollment cover Paralyzed Eastern filed package medical benefits process; Associations, Inc., Veterans and two of its purposes which, Association jurisdiction members. We have over the chapter as a Paralyzed Veterans of petition 502, 7292(c). §§ under 38 U.S.C. America, seeks “to assure its members Gober, Disabled Am. Veterans v. 234 F.3d proper dignified (Plain- health care.” (Fed.Cir.2000). ¶ 11a.) tiffs Petition The Association has petition states that the alleged (who association’s that two of its members two thousand members have spi- sustained petitioners also action), in this have been injuries nal cord spinal or have dys- cord placed incorrectly by the Department function, and that the two members are category seven instead of category four. “catastrophically disabled,” have paraple- Accordingly, the Association has demon- gia and use a Except wheelchair. strated that some of its members “would discussion standing this part, we re- otherwise have standing to sue in their fer petitioners to the collectively as “the right.” own Finally, below, as shown Association.” Association’s challenges Depart- petitioners presented have pletho- ment’s regulations do not require par- ra of challenges to provisions numerous *5 ticipation of individual members. the regulations. Many of them are insub- Thus, the Association has standing to stantial and do not require individual anal- mount its challenges to regulations. ysis. We only consider below those con- tentions that are sufficiently substantial to
warrant discussion. Ill so, Before doing however, we ad The Association contends that regu- dress the Association’s standing to main deny lations procedural pro- due tain this proceeding. The government (A) cess they do not “provide vet- does challenge such standing. But erans awith meaningful opportunity to since standing involves “constitutional limi participate in the determination of their tations on jurisdiction, federal-court [spe Priority Group”, (B) and do not tell them cifically] whether plaintiff has made the priority categories out a they ‘case which controversy’ have between himself placed been upon the defendant enrollment, (C) within the meaning their III,” Art. Seldin, Warth right 490, v. to challenge 422 U.S. an adverse decision. 498, 95 S.Ct. 45 (1975), L.Ed.2d 343
we deem it appropriate to A. address A veteran seeking to enroll for issue. medical benefits is required to an ap file plication 10-10EZ, on VA Form captioned An association has standing “when: “Application for Health Benefits.” This is (a) its members would otherwise have a two-page, relatively simple form calling standing to (b) sue in their own right; for a variety information, including four interests seeks protect germane questions teen that the veteran tois an organization’s (c) purpose; and nei by swer circling “yes” or “no.” One of ther the claim asserted nor the relief re questions these you is: “Do quested spinal have requires the participation of indi cord injury.” Although vidual the form members in the does not lawsuit.” Hunt v. contain a Washington space for Apple Comm’n, Adver. veteran to set forth 432 333, 343, U.S. 97 additional information S.Ct. about 53 L.Ed.2d his medical (1977). situation, The Association pro seeks to the veteran presumably may at tect the interests paralyzed tach veterans in any the form additional relevant receiving medical care. This germane material. where determination disability benefits ty pro- directive amended Secretary’s which questionnaire detailed by “[t]he which a process on “guidance
vides recipi- periodically sends agency and be state review ... a request can veteran infor- particularity disabled identifies ent catastrophically for evaluated deci- the entitlement a veteran mation relevant permits (CD) status” obtain recipient ex- is invited sion, disabled] [catastrophically and the a] “request[ office local SSA “scheduled be from amination,” which assistance im- More questionnaire. 2001-025. completing Directive provided.” to the critical information portantly, Secretary to con- derived usually is decision entitlement for of veterans enrollment an annual duct treating- sources, like medical from in a veteran place each and to physician.”). Depart- category. priority particular so, re- doing which “[njotification for procedure of enrollment ment’s B. categories assign enroll him to states: quires regulation provision of status” expeditious- of veterans large number to a network by a VA a decision Notice procedural the veterans ly, provides Network director, or the Chief facility Eldridge, Mathews process. due Cf. status will Officer, regarding enrollment 893, 47 L.Ed.2d 96 S.Ct. U.S. veteran affected to the provided that administrative (1976) (holding the reasons contain and will letter com- by the prescribed cedures will include letter decision. even due procedural port with changes and date effective disability benefits Security though Social rights. regarding appeal *6 statement evidentiary hear- an before terminated a 17.36(d)(5). of “[n]otice The 38 C.F.R. 397 Kelly, U.S. held); Goldberg v. ing is status” enrollment regarding ... decision 1011, 287 L.Ed.2d 25 264, 90 S.Ct. veter- whether only notice not includes (1970) process due (holding that of the notice but also been enrolled an has terminating hearing before evidentiary an been he has in which category priority “termination assistance welfare Depart- by the is confirmed This placed. controversy of a resolution pending aid was rule comments when ment’s eligible an re- deprive may eligibility over mulgated. live to by which very means of the cipient letter asserted Commenters waits”). he while their concerning veterans sends VA gives veter Secretary’s procedure The which indicate should status enrollment make his to opportunity fair full and an a placed was veteran group the priority form, simple application files He case. infor- this to intend in.... We cata an examination request may soon as veterans enrolled to mation of his en is informed disability, strophic possible. right of his category his rollment at 54210. Fed.Reg. the Board to adverse decision an appeal operating guidelines Department’s Secretary was Appeal. of Veterans informed bewill veterans indicate also to give further required Directive classification. priority their to participate opportunity additional giving sample letters includes 2000-001 en the veteran’s before decisional who veteran notification” “written were priority classification rollment CATASTROPHICALLY “REQUESTED El Mathews initially determined. Cf. Di- (CD) EVALUATION.” (writ DISABLED S.Ct. 893 at 424 U.S. dridge, and E. D 2001-025, Attachments rective Securi- in Social adequate ten submissions Both sample letters state whether or not may appeal VA regarding decisions enroll- the veteran “meet[s] the definition of a ment and disenrollment to the Board of catastrophically disabled veteran for ... Appeals Veterans’ and the Court Veter- health purposes.” sample letter Appeals.” ans 64 Fed.Reg. at 54211. Vet- for a veteran who is determined to be erans have a statutory right appeal catastrophically disabled also states: the Board of Appeals Veterans’ any deci- determination, “Based on this your enroll- sion that “affects provision of benefits priority ment group change should to Pri- veterans,” 511(a), in- ority Group 4. Official notification of cluding a Veterans Health Administrative changes your priority group will sent be decision concerning enrollment. 38 U.S.C. in a separate letter.” Directive 7104; 20.101(b) see also 38 C.F.R. D. sample Attachment letter for a (“The jurisdiction Board’s appellate ex- veteran iswho ruled not catastrophi- to questions tends of eligibility for hospi- cally disabled to contain “both the rea- talization, outpatient treatment, and nurs- sons for the decision summary and a ing home and domiciliary care ... and for evidence VA”; considered by the advises other benefits administered the Veter- the veteran how to “seek reconsideration Administration.”). ans Health decision”; of th[e] advises the veteran how As has recognized in his to appeal the decision to the Board of brief, right appeal covers a chal- Appeals; Veterans’ and encloses the De- lenge to the priority category to which the partment’s Form Notice of Procedur- veteran has been assigned. There is no al and Appellate Rights. Directive 2001- reason believe that 025, Attachment E. deny veterans right to notice and to C. governing regula- statutes and appeal that it has provided for regu- in its tions entitle a veteran to seek reconsidera- pronouncements. lations and tion of an adverse decision on entitlement D. The contends, Association however, or priority assignment appeal and to such that neither the Secretary’s statements decision to the Board of Veterans Appeals. *7 made promulgating regulations the nor The Secretary states his brief that his directive implementing may them be “[p]ursuant 17.133, to 38 C.F.R. a veter- properly considered in determining the an may request reconsideration of an ini- validity constitutional of regulations. the tial VHA determination, classification in- In view, the Association’s if the various cluding a that determination the veteran procedures that the has an- did not meet the criteria to be classified as nounced he will follow in administering the ‘catastrophically [and disabled’ that vet- a] regulations are not themselves set forth in eran also has option of immediately regulations, pass the latter cannot con- appealing the initial VHA determination to stitutional muster. the Board of Appeals.” Veterans’ Section disagree. 17.133 We pertinent “sets inquiry forth is reconsideration proce- the practical whether, dures regarding one claims for considering benefits admin- all circumstances, istered by the Veterans Health Secretary’s regula- Adminis- noted, tration.” As tions under regulations veterans with a full and the “[n]otice of fair opportunity present a[n enrollment] decision their claims to ... will include ... a the Secretary. statement regarding The form in which the appeal rights.” 17.36(d)(5). 38 procedures C.F.R. to be followed are set forth— Department’s comments when the whether in or in the Secre- rule was promulgated state that tary’s “veterans explanation and directive—is not the
1359 This or others. to self harm physical is whether question critical issue. has if individual is met an veter definition provides totality the situation of (or judicial by of Staff the Chief notice found adequate been ans with official) adequate fa- claim and at VA clinical equivalent of their disposition ruling. challenge an adverse was examined opportunity the individual cility where Loudermill, 470 Educ. Bd. [enumer- Cleveland condition have a permanent of 1487, 84 105 S.Ct. U.S. regulation]. in the ated (“The (1985) re essential 494 L.Ed.2d 17.36(e). C.F.R. 38 ... notice are of due quirements that the De- complains The Association Morris respond.”); opportunity and an limited improperly definition partment’s 471, 481, Brewer, 92 S.Ct. 408 sey v. U.S. “catastrophically dis- statutory term (1972) (“[D]ue pro L.Ed.2d requirements adding the by abled” procedur for such and calls cess is flexible “severely” dis- condition veterans’ be situation particular as the protections al In “permanent.” and that abling Immigration demands.”); see also acted phrase, the defining the Im v. Nat’l Ctr. Serv. Naturalization “all rules authority promulgate its under 183, 190, 112 U.S. Rights, 502 migrants’ necessary or which are (1991) (relying 116 L.Ed.2d S.Ct. adminis- carry the laws out appropriate to regulation aon comments agency’s upon are consis- tered of interpretation agency’s support laws.” tent with those shown, regu As we have regulation). “cata- of definition Department’s and The explanation Secretary’s lations and to mean disabled” satisfy strophically stan of them implementation disabling severely permanent those with “a dard. disorder, permissi- is a or disease” injury, IV statutory language upon the gloss ble authority Secretary’s in de argues that Association well within was regu disability” “catastrophic fining adopt. nar improperly lations, is consis- definition Department’s four, category scope priority rowed Act. history of the legislative tent with the defines
which the as: Priority group four described receipt of increased are in who Veterans those priority for other- category regular aid on a need pensions based cata- who eligible veterans wise being by reason and attendance disabled, as veterans such strophically vet other permanently housebound *8 injuries. veterans Such spinal cord disabled. catastrophically are erans who priority third tier in a would be included 1705(a)(4). not The Act does § 38 U.S.C. nonser- disabled profoundly other disabled,” and the “catastrophically define in- who receive veterans vice-connected by de this gap filled therefore regulations reg- on a need of based pension creased fining that term: permanent attendance ular aid and to means disabled [Cjatastrophically status. housebound in- disabling severely permanent have a (1996). Congress 104-690 H.R.Rep. No. compro- disorder, or disease jury, injuries as exam- cord spinal identified activi- carry out ability to mises disability, spinal catastrophic ple of a degree living to such daily ties of permanent. injuries generally are cord or me- personal requires the individual cata- Furthermore, described Congress or bed home to leave assistance chanical similarly disabled veterans strophically to avoid supervision constant to profoundly situated “other non- disabled nition and specific conditions or the service-connected veterans who receive in- disability functional levels that meet the pension creased regular based on a need of necessary definition are to ensure that the permanent aid and attendance or house- term ‘catastrophically disabled’ uniform- bound status.” ly applied.” Id. Department also stat- defining
After “catastrophically ed that other dis- medical conditions need not abled,” regulation states that 17.36(e) specifically “[t]his be enumerated in definition is met if an individual has been specifically “[conditions because men- permanent found to have a condition tioned ... would be covered when the specified” subparagraphs that follow the 17.36(e) criteria in are met. It is im- 17.36(e). definition. 38 C.F.R. These practical attempt specif- list all of the include “[q]uadriplegia,” “quadriparesis,” ic conditions that would be covered “blindness,” “paraplegia,” “persistent criteria.” 64 Fed.Reg. at 54209. These state,” vegetative or “a resulting condition comments make it clear be “cata- from two of the following [surgical proce- disabled,” strophically a veteran would not Id. dures].” have to both satisfy the definition and have
The Association contends that this pro- an enumerated condition.
vision is ambiguous could be indicating
read as that to be prior- within V four, ity category the veteran must be The Act requires “catastrophically both disabled” and also its capacity ] “maintain! from suffer of the one enumerated condi- specialized treatment and rehabilita tions. The provision is not ambiguous. tive needs disabled (including veterans meaning Its precise. is clear and After spinal veterans with dysfunction, cord defining “catastrophically disabled,” it blindness, amputations, illness) states that mental “[t]his definition is met” if a within veteran programs is found to have distinct one of or facilities of the enu- merated In words, conditions. other spe dedicated to the veteran who suffers from one of those cialized needs of those a man conditions (A) comes within the category of ner that affords those veterans reason “catastrophically Nothing disabled.” in able access to care and services for those suggests, either or could specialized needs, (B) ensures that properly be interpreted mean, that to capacity overall of the pro placed four, in category a veteran vide such services is not reduced below the must categorically be both disabled capacity Department, nationwide, to suffer from one the enumerated condi- provide services, those as of [the date of tions. The conditions are not an addi- 1706(b)(1). enactment].” requirement tional being catastrophi- “hospital list the cally disabled but a basis for establishing outpatient care [that] constitutes the ‘med- that condition. ical package’ benefits pre- basic care and *9 The argues Association provi- this ventive care” that Department sion was ambiguous by made Depart- provide: ment’s to a answer comment on pro- (i) Outpatient medical, surgical, and posed regulations that apparently assumed mental ... healthcare that veterans had to require- meet both (ii) ments. 64 Fed.Reg. at Inpatient 54208. The hospital, medical, De- surgical, partment responded “[b]oth the defi- and mental healthcare ... deliv- promote cost-effective as to over- manner including
(iii) drugs, Prescription services.”). care ery of health and sur- medical drugs and the-counter under the VA available supplies gical Secretary “to Act itself system. formulary national treatment and specialized for the provide ... (iv) Emergency care of disabled veterans needs rehabilitative dys- ... (v) counseling spinal with cord (including Bereavement blindness, men- function, amputations, and ser- (vi) rehabilitative Comprehensive illness);” no need for there was tal ... vices in requirement repeat this Secretary to and (viii) equipment Durable medical Department As the package. the benefits ... devices orthotic and prosthetic suggestion response in explained (ix) ... health services Home “the include a statement that package surgery re- (x) (plastic) Reconstructive capacity to maintain its [Department] will trau- of disease as a result quired accordance veterans in treat disabled ...ma. 1706,” such 38 U.S.C. provisions of 17.38(a). 38 C.F.R. unnecessary “[t]he since statement was three as- contends The Association by them- adequate statutory provisions package” benefits this “medical pects of require- this provide notice selves statutory provisions foregoing violate Fed.Reg. at 54211. ment.” 64 “maintain[ ] requiring complains Second, the Association specialized for the provide capacity its drugs are limited prescription because of dis- needs and rehabilitative treatment for VA national under the those “available veterans.” abled states, Secretary mulary system.” that the complains First, Association (and not does the Association however specialized treat- fails to include package formulary sys national deny), that the VA dysfunction, blind- spinal cord ment for that will drugs supplies tem lists the illness with- ness, and mental amputations, the veterans throughout available facilities, as programs in distinct the use system permits healthcare has de- requires. medically re if supplies drugs and other in not it would fined the benefits appropri is a reasonable This quired. particular medical conditions terms of provision “managing the ate method for in terms of but be covered that would in ... services and medical hospital care services the medical categories of general promote cost-effective as to a manner such Depart- gives This to be furnished. services,” health delivery of treating in vari- flexibility ment a desirable to do. required if lack that it might conditions ous medical all the in advance to define attempted provide treat- would for which it conditions complains Finally, the Association ment. ex package benefits the medical vitro cludes in fertility treatment. adopt this Secretary’s decision package did benefits original proposed to be listing the benefits approach re infertility services. In include adminis- his discretion to within vided was however, Depart comments, sponse to 1706(a) (“In man- ter the Act. U.S.C. “(other than such services ment added hospital care provision aging the fertilization).” Fed.Reg. at 54210. shall, vitro services, agen was consistent action Such feasible, design, establish to the extent *10 it ex- practice, long-established cy’s such a programs in manage health plained report in guarantee a 1989 to a Senate Department Com- that considering proposed mittee that was bill vide care and peri- services for that entire authorizing such services: od. Department The has consistently stated The Act itself refutes this contention. It furnishing reproductive that services provides that “in year” fiscal the re such as in vitro fertilization would quirement Department “shall” profoundly philosophical, raise difficult provide hospital care and medical services practical, perhaps legal questions on specified veterans is ... only “effective which there is no societal It consensus. to the extent in provided the amount remains our view that VA should not in advance in appropriation Acts for such become enmeshed these matters. 1710(a)(4) purposes.” (Supp. The issue raised such legislation is IV). It provides further the Secre simply might whether veterans ben- tary “may” also furnish such care and efit from such a service.... Provisions services to other veterans “to the extent far-reaching like this raise more resources and facilities are available.” 38 questions. troublesome 1710(a)(3) .IV). (Supp S.Rep. (1989), No. at 349-350 re- legislative history confirms that
printed in 1989 U.S.C.C.A.N. at 1745.
Congress recognized that enrollment for a
Nothing in the Act indicates that Con-
year
guarantee
does not
the availability of
gress intended
require
Department
medical
hospital
care and
services for that
to provide
infertility
veterans with
treat-
period. The House
Report
Committee
ment. Except
where the Act
stated:
specific services or
designated
care for
currently
As
instituted at
condition,
many
facil-
Secretary
VA
has broad
ities, an
system
enrollment
discretion to
does not in-
precise hospi-
determine the
tal
volve a
or medical
contractual
supplied.
relationship
services to be
between
did not abuse his
VA and the
discretion
enrollee or otherwise
in failing to
guarantee
include
vitro fertilization in
the enrollee that the VA will
the medical
package.
benefits
necessarily deliver all needed care.
(1996).
H.R.Rep. No. 104-690
The House
VT
Report also stated that
the Act did not
argument
Association’s final
is guarantee veterans health care:
permit
specifically
[the Act]
and substantially
Secretary to
during
disenroll veterans
limits
obligation
VA’s
care.
year of enrollment due to a lack of funds to
scope
of VA’s
only
mandate reaches
provision
cover the
of medical services for
“to the extent and in the
provid-
amount
them, the regulations violate
statutory
ined
in appropriations
advance
Acts for
requirement
that the
“estab
purposes”
these
[and] creates no such
lish
operate
system
patient
of annual
expectation [that veterans are entitled to
enrollment.” 38 U.S.C.
In oth
care].
words,
er
the Association contends that
Id.
Report points
out that under the
because veterans are
year,
enrolled for a
Act the Secretary will have “discretion” to
must continue to furnish
register
only “part
veterans for
of a fiscal
them
period,
medical services for that
even
year.” Id.
though during
period
runs out of funds to do so. The Associa
In
Oglala
Babbitt v.
Sioux Tribal Public
tion thus
year
treats enrollment
Safety
(Fed.
as a
Department,
right present evidence, DOW CHEMICAL rebut Plaintiff-Appellant, request examination medical flows Directive, from the language DVA regulation itself. COMPANY, SUMITOMO CHEMICAL LTD. and Sumitomo Chemical Amer agency An subject directive is not ica, Inc., Defendants-Appellees. requirements the notice and comment Act, the Administrative Procedure No. 00-1441. (1994), § 553 may be modified United States Court of Appeals, Indeed, at rescinded time. Federal Circuit. DVA Directive at issue this case was
recently altered without notice and com 25, July Decided 2001. ment rulemaking procedures, and is set to 27, July Corrected 2001. expire in 2006.
It possible may
deprived of their process guarantees due if rescinded,
the DVA Directive is altered or
leaving veterans any opportunity without present evidence, evidence, rebut or re
quest a However, medical examination.
this possibility cannot serve as the basis
for declaring regulations unconstitu
tional in a challenge. The fact that facial operate “might unconstitu
tionally under some conceivable set of cir
cumstances is insufficient to render
wholly Salerno, invalid.” United States v. U.S. 107 S.Ct. (1987).
L.Ed.2d 697 currently
As applied,
comport with the due require-
ments because the DVA Directive fur-
nishes veterans right with the present
evidence, evidence, rebut request Therefore, examination. the reg-
ulations cannot be unconstitutional on
their face.