257 F.3d 1352 (Fed. Cir. 2001), 00-7036, Eastern Paralyzed Veterans Assoc v. Secret of Vet Affairs

Docket Nº:00-7036
Citation:257 F.3d 1352
Case Date:July 19, 2001
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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257 F.3d 1352 (Fed. Cir. 2001)





United States Court of Appeals, Federal Circuit

July 19, 2001

Appealed from: Department of Veterans Affairs

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Richard M. Zuckerman, Rubin Baum Levin Constant & Friedman, of New York, New York, argued for petitioners. With him on the brief was Jacob Inwald. Of counsel on the brief were James J. Weisman, and Kleo J. King, Eastern Paralyzed Veterans Association, Ltd., of Jackson Heights, New York.

Opher Shweiki, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, Dc, argued for respondent. With him on the brief were David M. Cohen, Director; and Deobrah A. Bynum, Assistant Director.

Before Rader, Circuit Judge, Friedman, Senior Circuit Judge, and Gajarsa, Circuit Judge.

Friedman, Senior Circuit Judge

Opinion for the court filed by Senior Circuit Judge FRIEDMAN, in which Circuit Judge RADER joins. Concurring opinion filed by Circuit Judge GAJARSA.

A veterans association and individual veterans challenge regulations of the Department of Veterans Affairs (Department), 38 C.F.R. §§§§ 17.34-17.38, that implement the Veterans' Health Care Eligibility Reform Act of 1996 (Act), Pub. L. 104-262, §§ 104, codified at 38 U.S.C. §§ 1704 et seq. They assert that the regulations deny veterans due process, are inconsistent with the Act, and are arbitrary, capricious and an abuse of discretion. We reject these contentions and deny the petition for review.


The Act directs the Department to establish and operate an annual patient enrollment system 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 veteran's application and the assignment of the veteran to one of seven specified priority categories.

The first three categories cover veterans with various degrees of service-connected disabilities. 38 U.S.C. §§ 1705(a)(1)-(3). The fourth category is for "[v]eterans who are in receipt of increased pension based on need of regular aid and attendance or by reason of being permanently housebound and other veterans who are catastrophically disabled." 38 U.S.C. §§ 1705(a)(4). The fifth category is for veterans who are not within one of the first four categories and are "unable to defray the expenses of necessary care" as defined

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by 38 U.S.C. §§ 1722(a). 38 U.S.C. §§ 1705(a)(5). The sixth category covers veterans not within the first five categories and who meet specified criteria, including discharge "for a disability that was incurred or aggravated in the line of duty," receipt of a Purple Heart, "service in the Mexican border period or World War I," or "who [were] exposed to a toxic substance, radiation, or other conditions, as provided [elsewhere in the statute.]" 38 U.S.C. §§ 1710(a)(2). The seventh category is for veterans not covered by the preceding categories and for whom the Department determines that medical care is needed. 38 U.S.C. §§ 1710(a)(3). The statute provides that medical care will be provided to the categories "in the order listed." 38 U.S.C. §§ 1705(a).

The Act requires the Department to "maintain[] its capacity to provide for the specialized treatment and rehabilitative needs of disabled veterans (including veterans with spinal cord dysfunction, blindness, amputations, and mental illness) within distinct programs or facilities of the Department that are dedicated to the specialized needs of those veterans in a manner that (A) affords those veterans reasonable access to care and services for those specialized needs, and (B) ensures that overall capacity of the Department to provide such services is not reduced below the capacity of the Department, nationwide, to provide those services, as of [the date of enactment.]" 38 U.S.C. §§ 1706(b)(1).

On July 10, 1998, the Department published a notice of proposed rule making to implement the Act and invited public comments on the proposed rules. 63 Fed. Reg. 37299 (July 10, 1998).

On October 6, 1999, the Department published the final rules, which were codified at 38 C.F.R. §§§§ 17.34-17.38. 64 Fed. Reg. 54207 (Oct. 6, 1999). The regulations cover the enrollment and disenrollment process; the medical benefits package which describes the hospital care and medical services that will be provided to enrolled veterans; and the procedure for announcing which priority categories will be enrolled for the ensuing annual period, based on the Department's financial projections. 64 Fed. Reg. at 54212-54218. The final rule includes extensive discussion of the comments received and explains the changes made and not made in response to those comments.

At that time, the Department announced that it would enroll all seven priority categories of veterans for the period October 1, 1999 through September 30, 2000, unless it had to change this determination by subsequent rule making announcement. 64 Fed. Reg. at 54213.

Subsequently, the Department published an amended directive, VHA Directive 2001-025: Catastrophically Disabled Veteran Evaluation (Apr. 24, 2001) (Directive 2001-025), that provides "guidance on the process by which a veteran can request . . . a review and be evaluated for catastrophically disabled (CD) status." Directive 2001-025 includes "sample letters for notifying veterans of an outcome of a [catastrophically disabled] evaluation or the fact that a [catastrophically disabled] evaluation could not be completed based on the information in the veteran's medical records" and "how to schedule an appointment for a catastrophically disabled examination." Directive 2001-025 also summarizes the right of a veteran who disagrees with the Department's evaluation either to seek reconsideration of a denied claim for benefits under 38 C.F.R. §§ 17.133 or appeal directly to the Board of Veterans' Appeals pursuant to 38 C.F.R. §§ 7105. The directive states that it "EXPIRES APRIL 30, 2006."


The petition for review challenging the regulations is filed by Eastern Paralyzed

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Veterans Associations, Inc., and two of its members. We have jurisdiction over the petition under 38 U.S.C. §§§§ 502, 7292(c). Disabled Am. Veterans v. Gober, 234 F.3d 682, 686 (Fed. Cir. 2000).

The petition states that the association's two thousand members have sustained spinal cord injuries or have spinal cord dysfunction, and that the two members are "catastrophically disabled," have paraplegia and use a wheelchair. Except in the discussion of standing in this part, we refer to the petitioners collectively as "the Association."

The petitioners have presented a plethora of challenges to numerous provisions of the regulations. Many of them are insubstantial and do not require individual analysis. We consider below only those contentions that are sufficiently substantial to warrant discussion.

Before doing so, however, we address the Association's standing to maintain this proceeding. The government does not challenge such standing. But since standing involves "constitutional limitations on federal-court jurisdiction, [specifically] whether the plaintiff has made out a `case or controversy' between himself and the defendant within the meaning of Art. III," Warth v. Seldin, 422 U.S. 490, 498 (1975), we deem it appropriate to address the issue.

An association has standing "when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The Association seeks to protect the interests of paralyzed veterans in receiving medical care. This is germane to the purposes of the Association which, as a chapter of the Paralyzed Veterans of America, seeks "to assure its members proper and dignified health care." (Plaintiff's Petition ¶¶ 11a.) The Association has alleged that two of its members (who are also petitioners in this action), have been incorrectly placed by the Department in category seven instead of category four. Accordingly, the Association has demonstrated that some of its members "would otherwise have standing to sue in their own right." Finally, as shown below, the Association's challenges to the Department's regulations do not require the participation of individual members.

Thus, the Association has standing to mount its challenges to the regulations.


The Association contends that the regulations deny veterans procedural due process because they (A) do not "provide veterans with a meaningful opportunity to participate in the determination of their Priority Group", and do not tell them (B) the priority categories in which they have been placed upon enrollment, and (C) their right to challenge an adverse decision.

A. A veteran seeking to enroll for medical benefits is required to file an application on VA Form 10-10EZ, captioned "Application for Health Benefits." This is a two-page, relatively simple form calling for a variety of information, including fourteen questions that the veteran is to answer by circling "yes" or "no." One of these questions is: "Do you have a spinal cord injury." Although the form does not contain a space for the veteran to set forth additional information about his medical situation, the veteran presumably may attach to the form any additional relevant material.

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The Secretary's amended directive provides "guidance on the process by which a veteran can request . . . a review and be evaluated for catastrophically disabled (CD) status" and permits a veteran to "request[] a [catastrophically disabled] examination,"...

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