After you file your VA disability claim, you may find that the VA used what is called the M21-1 Compensation and Pension Manual as guidance to help decide your claim. This manual is the guidebook that VA raters use to decide your claim. It covers everything from correcting errors in rating decisions, if a veteran qualifies for disability due to having a medically unexplained chronic multisymptom illness due to Gulf War service, or whether a veteran qualifies for the Agent Orange exposure presumption if they are a “blue water” Navy veteran who served in a bay, inlet, or harbor during the Vietnam War. The guidance that the rater follows in the manual can decide the outcome of your claim – whether you win and get compensated for your military disability, or whether you lose and get nothing.
But if the M21-1 Manual is what the VA uses to determine your claim, does that mean that the manual is law? And what authority do the Courts and the Board of Veterans Appeals give to the manual?
VA disability claims are something unique to the law. When you typically think of the lawmaking process, you think that the Congress passes a law, the President ratifies it, and then that law goes into effect. This isn’t exactly what happens with VA disability law. It is true that if Congress passes a law, the VA has to follow it. However, Congress has delegated a lot of decision making power to the VA. As a consequence, the VA can make rules on its own, without direct oversight from Congress. This is called the rulemaking process. The courts have held that this process is legal, as the public is given notice of proposed rules, and the opportunity to comment on those rules. If someone feels that the VA has overstepped its bounds, they can file a lawsuit. If the reviewing court agrees that the rule isn’t lawful, then the rule has no effect.
So is the guidance of the M21-1 Manual VA a “rule”? That is, if you lose your VA claim because the rater followed something in the manual, can a court decide the manual is wrong?
The answer is no. The Court of Appeals for Veterans Claims, or CAVC, has decided that the manual is not a rule, but is rather a staff manual. As it isn’t a rule, it is not subject to judicial review.
This conclusion might lead you to believe that all hope is lost. But do not give up. The VA regional office may follow the Manual for guidance, but the CAVC and the Board of Veterans Appeals are not bound by the Manual, and they do not need to defer to its guidelines. If your case gets appealed from the regional office to the Board or the CAVC, those tribunals do not need to give the manual any deference.
Berry Law was founded by Vietnam War Veteran and legendary trial lawyer John Stevens Berry Sr. We are proud to have many military Veterans among our attorneys and staff who understand what it means to serve and know firsthand the struggles many of our clients face every day.
If your VA disability claim has been denied, Berry Law may be able to help. We have been successfully representing Veterans for decades. Contact us today for a free evaluation.
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