Case Information
*3 Before P ROST , Chief Judge , W ALLACH and T ARANTO ,
Circuit Judges.
W ALLACH , Circuit Judge.
In related petitions, [1] the American Legion (“American Legion”), the National Organization of Veterans’ Advo- cates, Inc. (“NOVA”), and the Veterans Justice Group, LLC (“VJG”) (collectively, “Petitioners”), challenge the validity of regulations issued in 2014 by the Department of Veterans Affairs (“VA” or “Secretary”) pursuant to its notice-and-comment rulemaking authority. See Standard Claims and Appeals Forms , 79 Fed. Reg. 57,660 (Dep’t of Veterans Affairs Sept. 25, 2014) (“Final Rule”). [2] The Final Rule amends the VA’s adjudication and appellate regulations to require that all claims and appeals origi- nate on standard VA forms. See id. at 57,678. For the reasons set forth below, we deny the petitions and hold the Final Rule valid because it accords with applicable rulemaking procedures and is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
B ACKGROUND
To understand the issues relevant to this appeal, we discuss, in turn, the VA’s prior regulation, the Final Rule, and the general arguments in the Petitions for Review.
I. Prior Regulation A. Claim Initiation
Veterans are entitled to compensation “[f]or disability resulting from personal injury suffered or disease con- tracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of du- ty . . . during a period of war.” 38 U.S.C. § 1110 (1998). For veterans to receive compensation under the laws administered by the VA, “[a] specific claim in the form prescribed by the Secretary . . . must be filed.” Id. § 5101(a)(1). The VA’s prior regulation implemented this authority by providing that “[ a ] ny communication or action, indicating an intent to apply for . . . benefits[,] . . . may be considered an informal claim.” 38 C.F.R. § 3.155(a) (2014) (emphasis added) (“Prior Regulation”). Under the Prior Regulation, a veteran could establish a claim’s effective date (i.e., when the claimant begins to receive compensation) by filing an informal claim, so long as a formal application was received by the VA “within [one] year from the date [the formal application form] was sent to the claimant.” Id.
B. Appeal
If a claimant perfected an informal claim by filing a formal application within the one-year time period, a VA Agency of Original Jurisdiction, typically a VA regional office (“RO”), considered the claim, gave notice to the claimant of its decision, and informed the claimant of his or her right to appeal. See 38 U.S.C. § 5104 (1998); 38 C.F.R. § 3.103(b)(1) (2014). An appeal could be initiated by filing a Notice of Disagreement (“NOD”), see 38 U.S.C. § 7105(a) (1998), and unless the requested benefit was granted or the NOD withdrawn, the VA would issue a “statement of the case” (“SOC”) summarizing the reasons for the VA’s decision on each issue, id. § 7105(d)(1). Following issuance of the SOC, the “claimant [would] be afforded a period of sixty days from the date of the [SOC] to file a formal appeal” with the Board of Veterans’ Ap- peals (“Veterans Board”). Id . § 7105(d)(3). The statute provides that the “appeal should set out specific allega- tions of error of fact or law, such allegations related to specific items in the [SOC].” Id .
The NOD is required to be: (1) filed within one year of the mailing of notice of the RO’s decision; and (2) in writing. . § 7105(b)(1). In addition to these statutory requirements, the VA required an NOD to “be in terms which [could] be reasonably construed as disagreement with [the RO’s decision] and a desire for appellate re- view,” although “special wording [was] not required.” 38 C.F.R. § 20.201 (2014). However, if the RO’s notice of decision decided multiple issues, under the Prior Regula- tion the claimant was required to specify which agency determinations he or she sought to appeal. Id .
II. Final Rule
In September 2014, the VA promulgated the Final
Rule, which sought to “strike a balance between standard-
izing, modernizing, and streamlining” the claim initiation
and appellate process, while providing “claimants . . . with
a process that remains veteran-friendly and informal.”
Final Rule,
Although the Final Rule incorporated a majority of the amendments originally proposed by the VA in 2013, it altered the proposed rule in one important respect. See Standard Claims and Appeals Forms , 78 Fed. Reg. 65,490, 65,492 (Dep’t of Veterans Affairs Oct. 31, 2013) (“Proposed Rule”). Under the Proposed Rule, submission of an informal claim––e.g., a narrative submission–– would no longer serve as an effective date placeholder that could later be perfected by the filing of a formal claim. See id . at 65,495 (altering the Prior Regulation’s definition of “claim” under 38 C.F.R. § 3.1(p) to exclude informal communications). Instead, an “incomplete claim” would provide the effective date placeholder func- tion formerly provided by an informal claim, if perfected by the filing of a standard application form within one year. Id . at 65,494. However, in contrast to the flexible nature of the prior “informal claim” system, under the Proposed Rule, a submission would be considered an “incomplete claim” only if a claimant filled out, completely or incompletely, an online application via the VA’s web- based electronic claims application system, but “d[id] not transmit the online application for processing.” . Otherwise, claims would be considered received as of the date they were filed on a standard paper application form.
When it published the Proposed Rule in 2013, the VA explained it was “facing an unprecedented volume of compensation claims” resulting in “unacceptable delays at every phase of [the] process for adjudicating claims and appeals.” . at 65,492. The VA received fifty-three comments in response to the Proposed Rule. While some commenters expressed approval of the agency’s attempt to bring increased clarity and efficiency, others expressed concern with certain aspects of the Proposed Rule, includ- ing the VA’s proposed interpretation of “incomplete claim,” which some perceived as unnecessarily parochial.
In lieu of the Proposed Rule’s “incomplete claim” con-
cept, the Final Rule establishes an “intent to file”
[3]
pro-
cess, which allows claimants to establish the effective
date of an award in any of three ways. First, under the
Final Rule, an intent to file may be established by saving
an electronic application within a VA web-based electron-
ic claims application system before submitting it for
actual processing. 38 C.F.R. § 3.155(b)(1)(i) (2015).
Second, a claimant may submit a VA standard form
(“VAF 21-0966”) in either paper or electronic form.
Id.
§ 3.155(b)(1)(ii); Final Rule, 79 Fed. Reg. at 57,666.
Third, a claimant may establish intent to file by com-
municating orally with certain designated VA personnel
“either in person or by telephone,” who will document the
claimant’s intent. Final Rule,
Lastly, the Final Rule specifies that, where the RO
“provides, in connection with its decision, a form identi-
fied as being for the purpose of initiating an appeal, an
NOD would consist of a completed and timely submitted
copy of that form.” Final Rule,
III. Petition for Review
Petitioners contend the Final Rule departs from the
“paternalistic, veteran friendly, and non-adversarial
nature of veterans benefits adjudication.” VJG (15-7021)
Br. 1 (internal quotation marks omitted).
[4]
Petitioners
timely filed this appeal pursuant to 38 U.S.C. § 502,
which provides this court with jurisdiction to review the
Final Rule.
See
38 U.S.C. § 502 (2012). “[U]nder 38
U.S.C. § 502, we may review [the] VA’s procedural and
substantive regulations, and the process by which those
regulations are made or amended.”
Paralyzed Veterans of
Am. v. Sec’y of Veterans Affairs
,
D ISCUSSION
I. Standard of Review
Petitions under 38 U.S.C. § 502 are reviewed under the Administrative Procedure Act (“APA”), as codified in 5 U.S.C. § 706. See Nyeholt v. Sec’y of Veterans Affairs , 298 F.3d 1350, 1355 (Fed. Cir. 2002). Under § 706, we must “hold unlawful and set aside agency action” we find “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (2012). “This review is highly deferential to the actions of the agency.” Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs , 260 F.3d 1365, 1372 (Fed. Cir. 2001) (internal quotation marks and citation omitted). II. The Final Rule Is a “Logical Outgrowth” of the Pro-
posed Rule
“The APA’s rulemaking provisions generally require that notice of proposed rules be published in the Federal Register and that ‘interested persons’ be given the ‘oppor- tunity to participate in the rule making through submis- sion of written data, views, or arguments.’” AFL-CIO v. Chao , 496 F. Supp. 2d 76, 83 (D.D.C. 2007) (quoting 5 U.S.C. § 553(c)). Although the APA does not explicitly address the relationship the notice of proposed rulemak- ing must have to the final rule, it provides some guidance when it states that agencies must publish in their notice of proposed rulemaking “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3).
Under this standard, an agency’s final rule need not
be identical to the proposed rule. Indeed, “[t]he whole
rationale of notice and comment rests on the expectation
that the final rules will be somewhat different and im-
proved from the rules originally proposed by the agency.”
Trans-Pac. Freight Conference of Japan/Korea v. Fed.
Mar. Comm’n
,
Where a proposed rule is modified in light of public
comment, the modified rule may be promulgated as a
final rule without additional notice and opportunity for
comment, so long as the final rule is a “logical outgrowth”
of the proposed rule.
CSX Transp., Inc. v. Surface
Transp. Bd.
,
American Legion contends “[t]he Final Rule’s intent-
to-file [provision] should be set aside . . . because it is not
a logical outgrowth of the Proposed Rule.” American
Legion (15-7061) Br. 46 (citation omitted). According to
American Legion, the Proposed Rule “did not propose
[the] creat[ion] [of] a new ‘[i]ntent to [f]ile’ form for initiat-
ing claims.”
Id
. at 47. Instead, American Legion asserts
the VA’s Proposed Rule sought to modify “the informal
claims process and replace it with a system where (i)
existing application forms are designated as ‘complete’ or
‘incomplete’; and (ii) electronic claims receive preferential
treatment over paper [claims].” . (citing Proposed Rule,
78 Fed. Reg. at 65,490, 65,494–97; Final Rule, 79 Fed.
Reg. at 57,663). Accordingly, American Legion contends
that, because “[t]he Final Rule replaces [the Proposed
Rule] with something very different [,namely,] a new
intent-to-file ‘concept’ based on a ‘new form’ that was
never mentioned in the Proposed Rule,”
id
. (quoting Final
Rule, 79 Fed. Reg. at 57,664), it could not have ‘“antici-
pated that the change was possible,’”
id
. at 46 (quoting
United Mine Workers of Am.,
In response, the VA argues it “has not switched direc- tion from the substance of the [P]roposed [R]ule, but has declined to go as far as originally proposed, following consideration of the public comments.” VA (15-7061) Br. 37 (internal quotation marks and citation omitted). The VA asserts the potential results of the Proposed Rule that could have been anticipated include “declin[ing] to totally eliminate effective date placeholders for paper claims,” and “attempt[ing] to reconcile [the effective date place- holder] policy with its need for standard inputs.” Id . at 38. Accordingly, the VA asserts that, although “[t]he [F]inal [R]ule uses different terminology and structure,” it “effects a policy urged to reconcile these issues.” .
We conclude that, under the circumstances of this
case, “interested parties should have anticipated that the
change” reflected in the “intent to file” provision of the
Final Rule was possible in light of the notice provided in
the Proposed Rule.
United Mine Workers of Am.,
626 F.3d
at 94–95. In lieu of the Proposed Rule’s introduction of
the “incomplete claim” concept, the VA adopted an “intent
to file” process. Final Rule,
Contrary to American Legion’s contention, the VA’s
substitution of the “intent to file” process for the proposed
“incomplete claim” concept does not constitute a change in
the basic approach of the Proposed Rule––the standardi-
zation of the claim initiation process.
See Griffin Indus.,
Inc. v. United States
, 27 Fed. Cl. 183, 196 (1992) (“The
approach . . . adopted by the [agency], while different from
the [P]roposed [R]egulation, was a logical outgrowth of
the original proposal” because “[t]he [F]inal [R]ule
changed neither the substance nor the approach” of the
proposed regulation). What is more, not only were the
“changes . . . in character with the original scheme[,]
[they] were additionally foreshadowed in proposals and
comments advanced during the rulemaking” and public
comment period.
S. Terminal Corp. v. EPA
,
Lastly, we find American Legion’s assertion puzzling
because it is incongruent with the contentions it proffers
regarding the substantive validity of the Final Rule.
Unlike the Proposed Rule, the Final Rule introduces
multiple avenues by which claimants may establish an
effective date placeholder, thereby creating increased
opportunities for claimants to establish a claim’s effective
date. The Final Rule does not go as far as the Proposed
Rule because it does not limit the intent to file process to
a VA web-based electronic claims application system.
See
Final Rule, 79 Fed. Reg. at 57,666. However, “[o]ne
logical outgrowth of a proposal is surely . . . to refrain
from taking the proposed step.”
Am. Iron & Steel Inst. v.
EPA
,
III. Validity of the Amended Regulations Petitioners’ challenge to the Final Rule may be ana- lytically divided into three categories: 1) claim initiation; 2) appeals; and 3) duty to develop claims.
As to claim initiation, Petitioners assert that the amendment of 38 C.F.R. § 3.1(p) (2014), the Prior Regula- tion’s informal claims provision, is arbitrary and capri- cious.
With respect to appeals, Petitioners challenge amend- ed 38 C.F.R. § 20.201(a)(1) and (a)(4), requiring that, when the RO provides an appeal form to a claimant in connection with the RO’s decision, an NOD initiating appellate review can be effected only by completing that form.
Lastly, Petitioners argue the Final Rule abrogates the VA’s duty to develop veterans’ claims because it “[i]mpermissibly [r]estricts [t]he [c]laims [d]eemed [r]aised [b]y [v]eterans,” American Legion (15-7061) Br. 51, and therefore does not allow the VA to adjudicate claims “reasonably raised” by the record, id. at 54. Specif- ically, Petitioners point to new 38 C.F.R. § 19.24(b), which requires claimants to “enumerate[] the issues or condi- tions for which appellate review is sought,” and new 38 C.F.R. § 3.160(a)(3)–(4), under which claimants must “identify the benefit sought” and provide “a description of symptom(s) or medical condition(s) on which the benefit is based,” respectively. We address each of these conten- tions in turn.
A. Claim Initiation: 38 C.F.R. Part 3
Our review of an agency’s interpretation of a statute
that it administers is governed by the two-step framework
articulated in
Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc
., 467 U.S. 837, 842–43 (1984).
See
Disabled Am. Veterans v. Gober
, 234 F.3d 682, 691 (Fed.
Cir. 2000). Under
Chevron
step one, we ask “whether
Congress has directly spoken to the precise question at
issue.”
However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id . at 843. Alternatively, if a statute is silent, but “Congress has explicitly left a gap for the agency to fill, there is an express delegation of author- ity to the agency to elucidate a specific provision of the statute by regulation.” Id . at 843–44. The resulting regulations are afforded “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” . at 844 (footnote omitted).
American Legion challenges the Final Rule’s require- ment that claims must originate on standard VA forms, asserting “Congress has . . . enacted legislation that affirmatively contradicts VA’s attempts to eliminate informal submissions as placeholders for effective dates.” American Legion (15-7061) Br. 30. It first argues that Congress, via the Veterans’ Benefits Act of 1957, Pub. L. No. 85-56, 71 Stat. 83 (1957) (“1957 Act”), codified the 1956 version of the “informal claims” regulation, 38 C.F.R. § 3.27 (1956), thus precluding the VA from eliminating the informal claims concept. It next argues that “[l]egislative developments since the 1957 Act confirm Congress’[s] intent to allow veterans to claim their earli- est informal written request to [the] VA as the effective date for benefits.” American Legion (15-7061) Br. 29. We address each of these contentions in turn.
1. Congress Did Not Codify the “Informal Claims” Provi-
sion of 38 C.F.R. § 3.27 (1956)
a. In Adopting the VA’s 1956 “Effective Date” Regula-
tion, the 1957 Act Did Not Also Adopt the “Informal
Claims” Regulation
In an effort to “expedite the adjudication of claims and render the system more comprehensible to veterans and the public,” H.R. Rep. No. 85-279, at 1214 (1957), reprint- ed in 1957 U.S.C.C.A.N 1214, 1217 (capitalization omit- ted), the 1957 Act consolidated “into a single act the subject matter of the extensive body of existing legislation authorizing and governing the payment of compensation for service-connected disability or death to persons who served in the military, naval, or air force of the United States,” id . at 1214 (capitalization omitted). In addition to the consolidation of existing legislation , the 1957 Act also consolidated “all the administrative provisions relat- ing to” pension, medical, and other VA benefits. . at 1215 (emphasis added).
American Legion contends that when Congress enact- ed the current effective date provision in 1957 (codified as amended at 38 U.S.C. § 5110(a)–(b)(1) (2012)), it also made statutory the VA’s longstanding rule that informal submissions can establish a claimant’s effective date. Thus, American Legion asserts that the VA cannot amend the regulations to exclude informal submissions.
Before the 1957 Act, the VA’s effective date provision was codified at 38 C.F.R. § 3.212 (1956). That regulation stated:
Initial awards of disability compensation will be payable . . . provided an appropriate claim therefor has been filed and, if incomplete , the necessary evidence to complete such claim is submitted within [one] year from the date of request therefor. . . . [The] claim [must be] filed within [one] year from date of discharge from such period of service [in order to bene- fit from an earlier effective date] . . . .
38 C.F.R. § 3.212 (1956) (emphases added). During this period, the VA defined the term “informal claim[]” as “[a]ny communication from or action by a claimant . . . which clearly indicates an intent to apply for disability or death compensation or pension.” 38 C.F.R. § 3.27 (1956). Section 3.27 further provided that an informal claim would serve to establish an effective date if a formal application—which would “be considered as evidence necessary to complete the initial application”—was “re- ceived [by the VA] within [one] year from the date it was transmitted for execution by the claimant.” Id. (emphasis added).
Without addressing claim completeness or informali- ty, the 1957 Act codified the “one year” provision:
(b) The effective date of an award of disabil- ity compensation to a veteran shall be the date of his discharge or release if application therefor is received within one year from such date of discharge or release.
1957 Act, § 910(b),
American Legion asserts that, because informal claims were considered sufficient to establish a claim’s effective date under the VA’s Prior Regulation, the eleva- tion of the effective date regulation to statute also codified the means (i.e., the filing of an informal claim) by which claimants may establish the effective date of their awards.
American Legion’s contention effectively raises a
Chevron
step one question because it requires us to ad-
dress whether Congress “has directly spoken to the pre-
cise question at issue.”
While Congress modeled the 1957 effective date provi-
sion on pre-1957 VA regulations, the provision is only
indirectly tied to the informal claims definition. It does
not define “informal claim,” or even include that term. It
does not include any of the 1956 regulation’s operative
terms, such as that an effective date will be established by
“[a]ny communication from or action by a claimant . . .
clearly indicat[ing] an intent to apply for disability.” 38
C.F.R. § 3.27 (1956).
See
1957 Act, § 910(a)–(b), 71 Stat.
at 119. There is no reason to presume that when Con-
gress codified the effective date regulation, it also legisla-
tively adopted,
sub silentio
, the
informal claims
regulation.
See NLRB v. Plasterers’ Local Union No. 79
,
What is more, Congress chose not to codify the infor-
mal claims provision of 38 C.F.R. § 3.27 (1956) at the
same time that it did codify a number of other pre-1957
VA regulations related to a veteran’s application for
disability benefits.
See
38 U.S.C. § 3001 (1958) (codifying
38 C.F.R. § 3.26(a) (1956), which provided that a properly
completed, VA-prescribed form “constitutes an application
for benefits”);
id.
§ 3004 (codifying 38 C.F.R. § 3.201(a)
(1956), which provided that where “[n]ew and material
evidence” is submitted after a claim is finally disallowed,
the new evidence “will constitute a new claim and have all
the attributes thereof”);
id.
§ 3010(b) (codifying 38 C.F.R.
§ 3.212 (1956), which allowed an earlier effective date for
claims filed “within [one] year from date of discharge”).
“[T]he Legislature’s silence” with respect to one aspect of
a regulatory scheme, in light of its codification of adminis-
trative rules governing other aspects of that scheme,
“indicates that Congress left the [former] matter where it
was” before the statute was enacted.
Kucana v. Holder
,
Legislative history is also relevant under the
Chevron
framework, and “may foreclose an agency’s preferred
interpretation” if it “makes clear what [the statute’s] text
leaves opaque.”
Catawba Cnty., N.C. v. EPA
,
b. Congress Did Not Codify 38 C.F.R. § 3.27 Via Post-
1957 Legislation
In further support of its contention that Congress cod- ified the informal claims regulation, American Legion next argues that “[l]egislative developments since the 1957 Act confirm Congress’[s] intent to allow veterans to claim their earliest informal written request to [the] VA as the effective date for benefits.” American Legion (15- 7061) Br. 29. Specifically, according to American Legion, “[b]etween 1957 and 2014, Congress took action in con- nection with the statute’s effective-date provisions, 38 U.S.C. § 5110, more than a dozen times. On at least three of these occasions, Congress amended, reenacted, or renumbered the very subsections that had first been signed into statutory law in 1957 . . . .” . (footnote omitted).
However, “there is nothing to indicate that [the in- formal claims regulation] was ever called to the attention of Congress,” and the reenactment of 38 U.S.C. § 5110 “was not accompanied by any congressional discussion which throws light on its intended scope.” United States v. Calamaro , 354 U.S. 351, 359 (1957); see also Comm’r v. Glenshaw Glass Co ., 348 U.S. 426, 431 (1955) (“Re- enactment [of a statute]––particularly without the slight- est affirmative indication that Congress ever had [a particular] decision before it––is an unreliable indicium at best.”); Helvering v. Reynolds , 313 U.S. 428, 432 (1941) (legislative ratification is “no more than an aid in statuto- ry construction” and “does not mean that the prior con- struction has become so embedded in the law that only Congress can effect a change” (citation omitted)). Accord- ingly, we reject American Legion’s contention that Con- gress’s reenactment of the effective date provision between 1957 and 2014 evidences an intent to codify the informal claims regulation.
c. The “Incomplete Application” Provision of 38 U.S.C.
§ 5102(b)–(c) Does Not Indicate Congress Intended to Codify the Informal Claims Regulation Finally, American Legion asserts that “[s]ince 1957, Congress has not merely acquiesced with VA’s position; [it] has also enacted legislation that affirmatively contra- dicts VA’s attempts to eliminate informal submissions as placeholders for effective dates.” American Legion (15- 7061) Br. 30. American Legion first points to 38 U.S.C. § 5102(b), which provides that “[i]f a claimant’s applica- tion . . . is incomplete, the Secretary shall notify the claimant . . . of the information necessary to complete the application.” 38 U.S.C. § 5102(b) (2012). An adjacent subsection further states that if a claimant has been “notified under section (b)” and the claimant fails to furnish necessary information “to complete [the] applica- tion , . . . no benefit may be paid or furnished.” Id. § 5102(c)(1) (emphasis added). American Legion argues that these subsections, when read in conjunction, require “a claim’s effective date [to be] tied to the date on which the veteran initiates [ the application ]—not the date of ultimate compliance with the formal application proce- dures.” American Legion (15-7061) Br. 31. Accordingly, American Legion asserts that when Congress enacted section 5102(c) in 2003, because the VA “had long defined the term ‘application’ to mean ‘a formal or informal com- munication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit[,]’” the “VA cannot . . . eviscerate what Congress plainly understood it was accomplishing when it enacted § 5102(c).” . (quoting 38 C.F.R. § 3.1(p) (2003)).
American Legion’s contention is predicated solely on the fact that Congress possessed knowledge of the VA’s definition of “application.” This begs the question. It is of little import that Congress was aware of the VA’s previ- ous definition of “application” as including an informal written communication. As the Supreme Court has stated:
The oft-repeated statement that administra- tive construction receives legislative approv- al by reenactment of a statutory provision, without material change[,] covers the situa- tion where the validity of administrative ac- ., tion standing by itself may be dubious or where ambiguities in a statute or rules are resolved by reference to administrative prac- tice prior to reenactment of a statute; and where it does not appear that the rule or practice has been changed by the adminis- trative agency through exercise of its contin- uing rule-making power. It does not mean that a regulation interpreting a provision of one act becomes frozen into another act mere- ly by reenactment of that provision, so that that administrative interpretation cannot be changed prospectively through exercise of ap- propriate rule-making powers . The contrary conclusion would not only drastically curtail the scope and materially impair the flexibil- ity of administrative action; it would produce a most awkward situation. Outstanding reg- ulations which had survived one Act could be changed only after a pre-view by the Con- gress.
Helvering v. Wilshire Oil Co
.,
The relevant inquiry is not whether Congress was aware of the prior regulations, but whether it intended to bind the VA to its existing definition via the enactment of 38 U.S.C. § 5102(b) and (c). In this case, “Congress has not given any indication of whether it intended” to bind the VA to its previous definition. VE Holding Corp . v. Johnson Gas Appliance Co 917 F.3d 1574, 1581 (Fed. Cir. 1990) (citation omitted); see 38 U.S.C. § 101 (2012) (providing definitions, but leaving “claim” and “applica- tion” undefined). In light of this congressional silence, the enactment of 38 U.S.C. § 5102(b) and (c) do not limit the VA’s discretion in the manner American Legion asserts. See, e.g., United States v. Home Concrete & Supply, LLC , 132 S. Ct. 1836, 1843 (2012) (plurality opinion) (“[A] statute’s silence or ambiguity as to a particular issue means that Congress has not directly addressed the precise question at issue (thus likely delegating gap-filling power to the agency).” (internal quotation marks and citation omitted)); Entergy Corp. v. Riverkeeper, Inc ., 556 U.S. 208, 222 (2009) (“It is eminently reasonable to con- clude that [a statute’s] silence is meant to convey nothing more than a refusal to tie the agency’s hands. . . .”).
2. Amended 38 C.F.R. Part 3, Requiring that Claims
Be Initiated Via a Standard VA Form Is Consistent
with 38 U.S.C. §§ 501(a)(2) and 5110(a)(1)
The statute is not only silent as to the definition of
“application,” but affirmatively grants “[t]he Secretary . . .
authority to prescribe all rules and regulations . . . includ-
ing––the
forms of application
by claimants under such
laws.” 38 U.S.C. § 501;
see also id.
§ 5101(a)(1) (“A specif-
ic claim
in the form prescribed by the Secretary
. . . must
be filed in order for benefits to be paid. . . .” (emphasis
added));
Mansfield v. Peake
, 525 F.3d 1312, 1317 (Fed.
Cir. 2008) (“Congress has provided the VA with authority
to establish the requirements for ‘claims’ for veterans’
benefits.”). Where Congress has “express[ly] delegat[ed]
authority to the agency to elucidate a specific provision of
the statute by regulation,” those “legislative regulations
are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.”
Chev-
ron
,
American Legion contends the “VA’s elimination of in- formal effective-date placeholders runs contrary to Con- gress’[s] overarching purpose in enacting the veterans’ benefit laws: maintaining a claimant-friendly, non- adversarial process for providing service-related benefits to veterans and their families.” American Legion (15- 7061) Br. 34. Accordingly, it asserts that the new and amended regulations under 38 C.F.R. Part 3 are arbitrary and capricious because the VA: “(1) has failed to establish a rational connection between its requirement that initial submissions be on standard forms and its asserted objec- tives; and (2) has not adequately considered the [Final] Rule’s impact on the veteran population.” . at 39 (foot- note omitted); see also id . at 38 (asserting the Final Rule is likely to disproportionately impact veterans for whom “it will be impossible to access [the] VA’s electronic plat- form or . . . understand the requirements [the] VA is imposing”).
The VA’s stated reason for favoring standard claims
forms is sufficient to show that the Final Rule’s standard
form requirement is rational. We note that the VA is in a
better position than this court to evaluate inefficiencies in
its system.
See Heckler v. Chaney
, 470 U.S. 821, 831–32
(1985) (“The agency is far better equipped than the courts
to deal with the many variables involved in the proper
ordering of its priorities.”);
see also Hettleman v. Ber-
gland
,
We also conclude the VA has adequately considered
and addressed the impact on the veteran population. In
issuing the Final Rule, the VA noted that “approximately
half of the claimant population . . . [already] file[s] claims
on a prescribed form.” Final Rule,
Additionally, it unlikely that the amended regula-
tions, and in particular the intent to file provisions codi-
fied at 38 C.F.R. § 3.155(b)(1)(i)–(iii), will unduly burden
veterans seeking to initiate claims. Although the Final
Rule may disproportionately impact some of the nation’s
veterans who either do not have or possess limited Inter-
net access,
see
J.A. 15-7061 204, J.A. 15-7061 207, this
issue
is attenuated because new 38 C.F.R.
§ 3.155(b)(1)(iii) allows claimants to initiate their claims
with a phone call. Thus, practically speaking, the in-
crease in burden on claimants is
de minimis
. If anything,
the Final Rule is more claimant-friendly because it in-
creases the menu of options available to the initiating
claimant. Accordingly, we find that the VA’s amendment
and new provisions to 38 C.F.R. Part 3, requiring claim-
ants to originate their claims on a standard VA form is
not “arbitrary, capricious, or manifestly contrary to stat-
ute.”
Favreau v. United States
,
Lastly, as to American Legion’s contention that the
Final Rule does not accord with the overarching purpose
of the veterans’ benefit laws, we agree with the VA that
“[c]onsistency with the ‘statutory framework’ plainly
cannot be reduced to the single-factor test of whether the
regulation is uniformly ‘pro-claimant.’” VA (15-7061) Br. 8 (quoting
Sears v. Principi
, 349 F.3d 1326, 1330 (Fed.
Cir. 2003)). As we explained in
Sears
, “we must take care
not to invalidate otherwise reasonable agency regulations
simply because they do not provide for a pro-claimant
outcome in every imaginable case.”
B. Appeals: 38 C.F.R. § 20.201(a)(1) and (a)(4) 1. 38 U.S.C. § 7105 Is Not Exhaustive
When an RO makes a decision that impacts the pay- ment of benefits or the granting of relief, the RO typically provides claimants with a notice of the decision and of the procedure for appeal. See 38 U.S.C. § 5104 (2012); 38 C.F.R. § 3.103(b)(1) (2015). Claimants have one year to initiate review of the RO’s decision with the Veterans Board by filing an NOD with the RO. 38 U.S.C. § 7105(b) (2012). As with the claim initiation process, the Final Rule requires claimants to initiate an appeal on a stand- ard NOD form. 38 C.F.R. § 20.201(a)(1) (2015). Where multiple determinations are at issue, the Final Rule requires the claimant to identify “the specific determina- tions with which the claimant disagrees.” Id. § 20.201(a)(4).
Petitioners challenge § 20.201(a) both as to its stand-
ard form requirement and its requirement that claimants
identify specific determinations of the notice of disagree-
ment with which they disagree. Petitioners contend that
we need only look at
Chevron
step one because “Congress
has directly spoken to the precise question at issue,”
namely, whether the VA may add to the statutory re-
quirements established in 38 U.S.C. § 7105 when deter-
mining what constitutes an NOD.
Specifically, NOVA argues that “congressional intent requires that [an NOD] only contain two elements: [1] Expression of intent to appeal and [2] Disagreement with a determination,” and that the statute therefore “clearly excludes imposing the use of a standardized form.” NOVA (15-7025) Br. 8 (capitalization modified). VJG similarly argues “[nothing] in 38 U.S.C. [§] 7105 author- ize[s] the Secretary to require . . . detailed ‘technical pleading’ in order to obtain appellate review of an adverse decision.” VJG (15-7021) Br. 25. It adds that “requiring specification of the issues on appeal in [an NOD] and a formal appeal is redundant.” . at 26 ( Comparing 38 C.F.R. § 20.201(a)(4) (requiring identification of “the specific determinations with which the claimant disa- grees”), with 38 U.S.C. § 7105(d)(3) (“The appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case.”)). NOVA also argues that Congress’s use of the term “notice of disagreement” in 38 U.S.C. § 7105, instead of the term “forms of application,” which is used else- where in Title 38, directly addresses and precludes the VA’s ability “to require a claimant to file a standardized form to initiate the appeal process.” NOVA (15-7025) Br. 13.
Our decision in
Gallegos v. Principi
squarely address-
es this issue.
See
does not . . . define [NOD] or suggest suffi- cient expressions to make a writing an NOD. The statute also does not suggest that its specifications for an NOD––writing, one-year time limit from notice, etc.––are the only re- quirements for a valid NOD. . . . In a general sense, the statute does not define an NOD. . . . Therefore, under [ Chevron ,] [38 U.S.C. § 7105] contains “a gap for an agency to fill” with regard to the definition of a legal- ly valid NOD .
283 F.3d at 1313 (quoting Chevron , 467 U.S. at 843) (emphasis added).
Consistent with our decision in Gallegos , we conclude 38 U.S.C. § 7105(b) is not exhaustive and does not restrict the VA’s authority to fashion or articulate additional requirements claimants must satisfy in order to complete an NOD. See Gallegos , 283 F.3d at 1314 (“Section 7105 does not preclude other requirements for an NOD.”).
Lastly, with respect to NOVA’s assertion that Con- gress’s use of the term “notice of disagreement” instead of “forms of application” necessarily precludes the VA from mandating that NODs be completed on standard forms, we find nothing inherent in the term “notice” that pre- cludes the VA from requiring such notice to be communi- cated on a standard VA form. See Notice, Black’s Law Dictionary (10th ed. 2014) (providing many context- dependent definitions ( i.e ., “due notice,” “implied notice,” “notice filing”) of the term “notice”).
2. The Final Rule’s Imposition of a Mandatory NOD Identifying Specific Issues of Disagreement Is Not Arbi-
trary
A regulation is not arbitrary and capricious as long as
there is a ‘“rational connection between the facts found
and the choice made.”’
Nat’l Org. of Veterans’ Advocates,
Inc. v. Sec’y of Veterans Affairs
,
VJG further argues that under the Prior Regulation, the form required to perfect a formal appeal “contain[ed] a box for claimants to check if he or she ‘want[ed] to appeal all of the issues listed on the [SOC].’” VJG (15-7021) Reply Br. 11 (quoting VA Form 9, § 9.A [5] ) (internal quota- tion marks omitted). According to VJG, the “designation of ‘all of the issues’ contained in the decision document has long been sufficiently detailed for the Secretary to accept as ‘specific allegations of error of fact or law’ pur- suant to 38 U.S.C. [§] 7105(d)(3).” Id .; see also id . at 12 (asserting that the VA’s acceptance of “a blanket designa- tion of ‘all of the issues’ in a ‘substantive appeal’ form (i.e., VA Form 9)” necessarily means the VA must also “accept at least that level of generality in an NOD”).
We conclude that the requirement to use a standard
form to identify the specific issues of disagreement,
see
38
C.F.R. §§ 19.24, 20.201(a)(4) (2015), is rationally related
to the adjudication of veterans’ appeals. While we are not
unsympathetic to Petitioners’ contentions, those conten-
tions are primarily derivative of the fact that the VA
seeks to
change
the appeal initiation process, and do not
persuasively explain why the change constitutes an
unreasonable exercise of the VA’s authority. The VA has
adequately explained why its regulations are rational.
The VA notes that under its Prior Regulations, “broad and
unclear requirements” led to delays in appeals processing,
Proposed Rule, 78 Fed. Reg. at 65,497, and that “use of
the standardized NOD enables [agency] personnel to more
quickly conduct targeted development and consideration
of a veteran’s appeal,”
id
. at 65,498. The VA further
points out that “[e]rrors in identifying NODs can compli-
cate otherwise straightforward claims.”
Id.
at 65,497. It
asserts that the form must be mandatory because a
standardized form’s “positive impact would be greatly
diluted” if even a few claimants did not make use of the
form, because the VA would then “still be required to
scour all claimant submissions and engage in the time-
intensive interpretative exercise of determining whether a
given document could be reasonably construed as an
NOD.” . at 65,498 (internal quotation marks omitted).
And it stresses that timely consideration of appeals is
facilitated by the specification of disagreements as early
as possible. Final Rule,
The VA’s efficiency rationale is sufficient; the VA pos- sesses a duty not only to individual claimants, but to the effective functioning of the veterans compensation system as a whole. Moreover, because the VA possesses limited resources, these dual obligations may sometimes compel it to make necessary tradeoffs. See Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (“[A]n agency has broad discre- tion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” (citation omitted)). Although the VA’s mandatory stand- ard form increases the burden to some claimants when initiating the appeals process, to the extent standardiza- tion augments the overall efficiency of the appeals pro- cess, individual claimants also reap its benefits.
We recognize Congress desired the veterans’ benefits
claim system to be as “informal and nonadversarial as
possible.”
Walters v. Nat’l Ass’n of Radiation Survivors
, 473 U.S. 305, 323–24 (1985). However, because the
agency’s action is not arbitrary, capricious, or manifestly
contrary to the statute, we uphold the Final Rule’s
amendment of 38 C.F.R. § 20.201(a)(1) and (a)(4), requir-
ing claimants to initiate appeals on a standard VA form in
which specific points of disagreement are identified.
See
Rite Aid Corp. v. United States
,
C. Duty to Develop Claims: 38 C.F.R. §§ 3.160(a)(3)–(4),
and 19.24(b)
1. The Statute Does Not Directly Address Whether the
VA Must Develop Claims Unrelated to the Claim Pre-
sented
Under the Final Rule, a “complete claim must identify the benefit sought,” 38 C.F.R. § 3.160(a)(3) (2015), and include “[a] description of any symptom(s) or medical condition(s) on which the benefit is based,” id. § 3.160(a)(4). Similarly, a complete NOD generally re- quires an identification of “[t]he claim to which the form pertains,” as well as “[a]ny information necessary to identify the specific nature of the disagreement” which, “[f]or compensation claims,” includes an “enumerat[ion] [of] the issues or conditions for which appellate review is sought.” Id. § 19.24(b).
Petitioners contend that because new 38 C.F.R. §§ 3.160(a)(3)–(4) and 19.24(b) place “restrictions on claims that are raised by record evidence but not specifi- cally identified by the veteran, [they are] contrary to law.” American Legion (15-7061) Br. 48 (capitalization omitted); see also VJG (15-7021) Br. 25 (“Following submittal of [an NOD], [the] VA is required to take such development or review action as it deems proper.” (internal quotation marks and citation omitted)). Specifically, Petitioners contend that under 38 C.F.R. §§ 3.160(a)(3)– (a)(4) and 19.24(b), the VA is not required to “adjudicate bene- fits for any medical condition that is not specifically identified and that [the] VA deems ‘unrelated to those particular claims’—no matter how apparent the condition is on the face of the record.” American Legion (15-7061) Br. 51 (quoting Final Rule, 79 Fed. Reg. at 57,672). Similarly, VJG asserts the VA “abandoned” its “‘longstanding practice to infer or identify and award certain benefits that a claimant has not expressly re- quested but that are related to a claimed condition and [where] there is evidence of record indicating entitle- ment.’” VJG (15-7021) Br. 19 (quoting Final Rule, 79 Fed. Reg. at 57,672). VJG further argues the Final Rule contravenes 38 U.S.C. § 5107(b) (2012), which directs the VA to consider “‘ all information and lay and medical evidence of record in a case ’––not just evidence related to claimed conditions or specific claims.” VJG (15-7021) Br. 21 (quoting 38 U.S.C. § 5107(b)). American Legion simi- larly argues the “VA may not limit its review and adjudi- cation to medical conditions and symptoms that are expressly identified in the veteran’s filings and conditions secondary to those.” American Legion (15-7061) Br. 52 (citing Roberson v. Principi , 251 F.3d 1378, 1384 (Fed. Cir. 2001)).
Both parties agree the VA is required to develop evi- dence related to the claim. The VA states, for example, that “under the [F]inal [R]ule, only an issue that has no factual, medical, or causal relationship to any of the symptoms or conditions identified on the standard form would not be considered part of the claim.” VA (15-7061) Br. 42. However, it takes the position that, when an issue “bears no factual, causal, medical or other relationship to the issues that were presented for adjudication,” the VA does not have a statutory duty to develop the evidence pertaining to that issue. . at 43. Petitioners, by con- trast, interpret the VA’s position to mean that the “VA will no longer look for or award claims only contained in the evidence no matter how sound, obvious or significant.” VJG (15-7021) Br. 22 (internal quotation marks omitted). Similarly, American Legion asserts “[t]he implications of [the Final Rule]” are such that “[i]f a veteran files a disability claim based on PTSD but fails to mention in his application that he lost both legs during service, [the] VA . . . ha[s] no obligation to develop, adjudicate, or even inform the veteran of any benefits related to his amputa- tions––even if those amputations are obvious on the face of the record and the VA adjudicator has actual knowledge of them.” American Legion (15-7061) Br. 52.
Again, we “engage[] in the familiar two-step analytic process articulated in Chevron .” Hawkins v. United States , 469 F.3d 993, 1000 (Fed. Cir. 2006). We first inquire “whether Congress has directly spoken to the precise question at issue.” Chevron , 467 U.S. at 842. Here, the precise question at issue is whether 38 U.S.C. § 5107 requires the VA to develop evidence outside the scope of the claim at issue.
Section 5107(a) provides that “a claimant has the re- sponsibility to present and support a claim for benefits.” 38 U.S.C. § 5107(a) (2012). That is, § 5107 places respon- sibility on the claimant for presenting and supporting a claim. Petitioners, however, focus on subsection (b). That subsection is entitled “Benefit of the Doubt,” and requires “[t]he Secretary [to] consider all information and lay and medical evidence of record in a case before the Secretary” and, having considered this evidence and found “an approximate balance of positive and negative evi- dence, . . . give the benefit of the doubt to the claimant.” Id. § 5107(b).
Although Petitioners focus on the requirement that
the Secretary “consider all information and lay and medi-
cal evidence of record,”
see
VJG (15-7021) Br. 20 (quoting
38 U.S.C. § 5107(b)); American Legion (15-7061) Br. 52–
53 n.26 (same), the context indicates this statutory com-
mand is directed at ensuring consideration of all
relevant
evidence, such that the VA resolves close cases in favor of
the veteran. Contrary to Petitioners’ assertion, it does not
directly address whether the VA must develop evidence
outside the scope of a pending claim. We therefore turn to
Chevron
step two, and ask whether the regulations in
question are based on a reasonable interpretation of the
statute.
See
2. The Final Rule Is a Reasonable Interpretation of the Statute and Does Not Alter the VA’s General Practice of
Identifying and Adjudicating Issues
‘“[T]he power of an administrative agency to adminis-
ter a congressionally created . . . program necessarily
requires the formulation of policy and the making of rules
to fill any gap left, implicitly or explicitly, by Congress.”’
Paralyzed Veterans of Am
., 345 F.3d at 1340 (quoting
Chevron
,
We find the challenged portions of 38 C.F.R. §§ 3.160(a)(3)–(4) and 19.24(b) reflect a reasonable inter- pretation of the statute. In fact, the regulations do not substantively diverge from the VA’s prior regulation; they do not alter the VA’s general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before the VA. See Final Rule, 79 Fed. Reg. at 57,672 (“Although the rule requires claimants to speci- fy the symptoms or conditions on which their claims are based and the benefits they seek, it generally would not preclude the VA from identifying, addressing, and adjudi- cating related matters that are reasonably raised by the evidence of record which the claimant may not have anticipated or claimed. . . .”).
We are even more convinced of this determination be-
cause, contrary to Petitioners’ position, a veteran’s claim
is not extinguished if the unclaimed condition is not
reflected in the claim presented to the VA because the
claimant may file a new claim directed to the unrelated
evidence. Therefore, we find that new 38 C.F.R.
§§ 3.160(a)(3)–(4) and 19.24(b) of the VA’s Final Rule
requiring that claimants identify symptoms or medical
conditions at a high level of generality is a permissible
construction of the statute.
Chevron
,
C ONCLUSION
We uphold the Final Rule, which generally requires that all claims and appeals originate on a standard VA form, and find that it does not contravene Congress’s mandate that the VA has a duty to develop veterans’ claims. For the foregoing reasons, the petitions are
DENIED
Notes
[1] Veterans Justice Grp . , LLC v. Sec’y of Veterans Af- fairs , No. 2015-7021 (Fed. Cir. argued Oct. 8, 2015), Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs , No. 2015-7025 (Fed. Cir. argued Oct. 8, 2015); Am. Legion v. Sec’y of Veterans Affairs , No. 2015-7061 (Fed. Cir. argued Oct. 8, 2015).
[2] The Final Rule took effect on March 24, 2015.
See
Final Rule,
[3] “An intent to file a claim must provide sufficient
identifiable or biographical information to identify the
claimant.” Final Rule,
[4] The numbers 15-7021, 15-7025, and 15-7061 de- note the record materials and briefs in Appeal Nos. 2015- 7021, 2015-7025, and 2015-7061, respectively.
[5] The VA previously required this form to perfect a formal appeal. See Dep’t of Veterans Affairs , VA Form 9: Appeal to Board of Veterans’ Appeals, available at , http://www.va.gov/vaforms/va/pdf/VA9.pdf. As to sub- stantive appeals, the VA will continue to use Form 9 upon the implementation of the Final Rule, as required under 38 C.F.R. § 20.202.