Disabled American Veterans v. Secretary of Veterans Affairs ( 2005 )


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    United States Court of Appeals for the Federal Circuit
    Corrected: August 3, 2005
    04-7117, -7128
    DISABLED AMERICAN VETERANS,
    Petitioner,
    and
    THE AMERICAN LEGION and
    THE NATIONAL VETERANS LEGAL SERVICES PROGRAM,
    Petitioners,
    v.
    SECRETARY OF VETERANS AFFAIRS,
    Respondent.
    Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for
    petitioner Disabled American Veterans. With him on the brief was Donald E. Purcell.
    Ana Holmes, Steptoe & Johnson LLP, of Washington, DC, argued for petitioners
    The American Legion and The National Veterans Legal Services Program. On the brief
    was Jeffrey E. McFadden. Of counsel on the brief was Barton F. Stichman, National
    Veterans Legal Services Program, of Washington, DC.
    Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil
    Division, United States Department of Justice, of Washington, DC, argued for
    respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General
    and David M. Cohen, Director. Of counsel were Mark A. Melnick, Assistant Director,
    and Cristina C. Ashworth, Attorney. Of counsel on the brief were Michael J. Timinski,
    Deputy Assistant General Counsel, and Martin J. Sendek, Staff Attorney, United States
    Department of Veterans Affairs, of Washington, DC.
    Appealed from: United States Department of Veterans Affairs
    United States Court of Appeals for the Federal Circuit
    04-7117, -7128
    DISABLED AMERICAN VETERANS,
    Petitioner,
    and
    THE AMERICAN LEGION and THE NATIONAL
    VETERANS LEGAL SERVICES PROGRAM
    Petitioners,
    v.
    SECRETARY OF VETERANS AFFAIRS,
    Respondent.
    ___________________________
    DECIDED: August 3, 2005
    ___________________________
    Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges.
    Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit
    Judge MAYER.
    DYK, Circuit Judge.
    Disabled American Veterans, the American Legion, and the National Veterans
    Legal Services Program (collectively “petitioners”) petition for review of a regulation
    promulgated by the Secretary of Veterans Affairs, 
    38 C.F.R. § 20.901
    (a). We hold that
    the regulation is valid and accordingly deny the petition for review.
    BACKGROUND
    This case involves a regulation that authorizes the Board of Veterans Appeals
    (hereinafter “Board”) to secure medical opinions from health care professionals within
    the Department of Veterans Affairs (“VA”). Some background on the administration of
    veterans benefits is helpful to understanding the operation of this regulation.
    Among the most important of benefit programs administered by the VA is the
    disability compensation program, which provides compensation to veterans who suffer a
    “disability resulting from personal injury suffered or disease contracted in line of duty.”
    
    38 U.S.C. § 1110
     (2000). A veteran claiming benefits submits an application to the VA,
    and an initial decision on benefits is rendered by the Secretary of Veterans Affairs
    (“Secretary”) under 
    38 U.S.C. § 511
    (a). As a practical matter the initial decision is
    usually made by the Secretary’s delegate at the regional office under the authority of 
    38 C.F.R. § 3.100
    . The entity that renders the initial decision is known as the “agency of
    original jurisdiction,” 
    38 C.F.R. § 20.3
    (a) (2004), but for convenience we will refer to it as
    the regional office.
    Generally, a veteran who claims entitlement to disability compensation benefits
    must show (1) a current disability; (2) an in-service precipitating disease, injury or event;
    and (3) nexus between the current disability and the in-service events. See Epps v.
    Gober, 
    126 F.3d 1464
    , 1468 (Fed. Cir. 1997); see also Shedden v. Principi, 
    381 F.3d 1163
    , 1167 (Fed. Cir. 2004) (presumption that an injury incurred during active duty is
    service-connected). Medical evidence and medical opinion is important to the questions
    of whether there is a disability and whether that disability is service-connected.
    04-7117, -7128                               2
    Recognizing the importance of such medical evidence and opinion, Congress
    specifically vested the VA with a duty to provide a medical examination and to obtain a
    medical opinion “when such an examination or opinion is necessary to make a decision
    on the claim.” 38 U.S.C. § 5103A(d) (2000). The statute deems medical evidence and
    opinion to be necessary when the record “contains competent evidence that the
    claimant has a current disability . . . , indicates that the disability or symptoms may be
    associated with the claimant's active . . . service” and “does not contain sufficient
    medical evidence for the Secretary to make a decision on the claim.” Id. Thus, when
    necessary to the making of an initial determination on a claim, the VA is generally
    required by statute to make reasonable efforts to obtain relevant medical records, to
    provide medical examinations, and to secure medical opinions.
    The Board is an appellate body within the VA that reviews initial decisions made
    under 
    38 U.S.C. § 511
    . “Decisions of the Board [are] based on the entire record.” 
    38 U.S.C. § 7104
    (a) (2000). As we have noted, the Board conducts de novo review of
    regional office proceedings based on the record. See Donovan v. West, 
    158 F.3d 1377
    ,
    1381 (Fed. Cir. 1998). The Board decides approximately 35,000 to 40,000 cases per
    year.
    In a departure from the Board’s primary function as an appellate body, VA
    regulations have since the early 1960s allowed the Board to secure medical opinions
    from within the VA from the Chief Medical Director (now the Under-Secretary of Health).
    In 1999, the Board obtained 482 medical opinions from the Chief Medical Director. The
    securing of such opinions by the Board avoids a remand.
    04-7117, -7128                             3
    The regulation permitting the obtaining of medical opinions from the Chief
    Medical Director was first adopted in 1964,1 but the practice has existed since at least
    1962. The regulation was renumbered and several minor amendments were made over
    the next 35 years.2 In 2001, the present, somewhat broader regulation was adopted as
    an interim final rule, but the Secretary invited comments concerning the proposed final
    rule. 
    66 Fed. Reg. 38158
    , 38159 (July 23, 2001). After receiving comments, the interim
    final rule was adopted as the final rule without any change in the text. 
    69 Fed. Reg. 19935
    , 19937 (Apr. 15, 2004). The regulation states:
    Opinion from the Veterans Health Administration. The Board may obtain a
    medical opinion from an appropriate health care professional in the
    Veterans Health Administration of the Department of Veterans Affairs on
    medical questions involved in the consideration of an appeal when, in its
    judgment, such medical expertise is needed for equitable disposition of an
    appeal.
    1
    The first regulation provided:
    Opinion of the Chief Medical Director. The Board may obtain an expert
    medical opinion from the Chief Medical Director of the Veterans
    Administration on medical questions involved in the consideration of an
    appeal, when in its judgment such medical expertise, in addition to that
    available from the Board’s medical staff, is needed for equitable
    disposition of the appeal.
    
    38 C.F.R. § 19.144
     (1965).
    2
    The version in effect in 2000 provided:
    Opinion of the Chief Medical Director. The Board may obtain a medical
    opinion from the Chief Medical Director of the Veterans Health
    Administration of the Department of Veterans Affairs on medical questions
    involved in the consideration of an appeal when, in its judgment, such
    medical expertise is needed for equitable disposition of an appeal.
    
    38 C.F.R. § 20.901
    (a) (2000).
    04-7117, -7128                            4
    
    38 C.F.R. § 20.901
    (a) (2004). The regulations also provide that the veteran must be
    furnished with a copy of the opinion and given 60 days to respond.             
    38 C.F.R. § 20.903
    (a) (2004). In the final rule, the Secretary cited 38 U.S.C. §§ 5103A and 7109
    as authority for the regulation. 
    38 C.F.R. § 20.901
    (a) (2004).
    Petitioners contend that 
    38 C.F.R. § 20.901
    (a) is invalid because it is contrary to
    the appellate function of the Board and the “one review on appeal” requirement of 
    38 U.S.C. § 7104
    (a). We have jurisdiction pursuant to 
    38 U.S.C. § 502
    .
    DISCUSSION
    I
    There is no doubt that the challenged regulation does allow the Board to consider
    evidence that was not before the regional office as an original matter. Nor is there any
    doubt that the Board generally functions in an appellate capacity.
    The Board was first established by Executive Order and then by statute in 1946.
    Act of June 22, 1946, ch. 448, 
    60 Stat. 299
    . Its functions were codified into statute by
    the Veterans Benefits Act of 1957, Pub. L. No. 85-56, 
    71 Stat. 83
    . As described in
    Bates v. Nicholson, 
    398 F.3d 1355
    , 1363-64 (Fed. Cir. 2005), the Board’s existence and
    performance of an appellate function long predated judicial review of veterans claims,
    which was not provided until 1988. See Veterans’ Judicial Review Act, Pub. L. No. 100-
    687, 
    102 Stat. 4105
     (1988).
    Incorporating the prior regulation, section 1304(a) of the Veterans’ Benefits Act of
    1957 provided that:
    All questions on claims involving benefits under the laws administered by
    the Veterans’ Administration shall be subject to one review on appeal to
    the Administrator. Final decisions on such appeals shall be made by the
    Board.
    04-7117, -7128                             5
    Veterans’ Benefits Act § 1304(a), 71 Stat. at 128. This provision has been subject to
    only minor amendments, and currently appears at 
    38 U.S.C. § 7104
    (a), which provides,
    in pertinent part:
    All questions in a matter which under section 511(a) of this title is subject
    to decision by the Secretary shall be subject to one review on appeal to
    the Secretary. Final decisions on such appeals shall be made by the
    Board. Decisions of the Board shall be based on the entire record in the
    proceeding.
    (emphasis added). As we held in Disabled American Veterans v. Secretary of Veterans
    Affairs, 
    327 F.3d 1339
    , 1346-47 (Fed. Cir. 2003) (“DAV I”), this “one review on appeal”
    provision of section 7104(a) generally bars the Board from considering new evidence
    that was not before the regional office.
    In DAV I, the petitioner challenged the validity of 
    38 C.F.R. § 19.9
    (a)(2) (2002),
    which provided:
    If further evidence . . . or any other action is essential for a proper
    appellate decision, a Board Member or panel of Members may . . . [d]irect
    Board personnel to undertake the action essential for a proper appellate
    decision.
    We held that § 19.9(a)(2) was “inconsistent with 
    38 U.S.C. § 7104
    (a), because
    § 19.9(a)(2) denies appellants ‘one review on appeal to the Secretary’ when the Board
    considers additional evidence.” DAV I, 
    327 F.3d at 1347
    . However, in DAV I we also
    noted that there were several exceptions where “Congress has provided express
    statutory authority to permit the Board to obtain additional evidence, such as expert
    medical opinions in specific cases.” Id.3
    3
    The DAV I opinion stated:
    04-7117, -7128                              6
    II
    The government argues that 
    38 U.S.C. § 7109
    , relied on by the Secretary as
    authority for promulgating the regulation, creates the necessary exception to the “one
    review on appeal” rule in section 7104. The government also argues that, even if the
    statutory authority is ambiguous, deference should be given to the Secretary’s
    interpretation of the statute under Chevron U.S.A. Inc. v. Natural Resources Defense
    Council, Inc., 
    467 U.S. 837
     (1984).     We conclude that the statute clearly provides
    authority for the regulation and thus do not reach the deference issue. See 
    id.
     at 843
    n.9 (“If a court, employing traditional tools of statutory construction, ascertains that
    Congress had an intention on the precise question at issue, that intention is the law and
    must be given effect.”).
    Section 7109 was enacted in 1962 and currently provides:
    § 7109. Independent medical opinions
    Congress has provided express statutory authority to permit the Board to
    obtain additional evidence, such as expert medical opinions in specific
    cases. See, e.g., 
    38 U.S.C. § 5107
    (a) (2000) (authorizing Board to obtain
    medical opinions from the VA's Under Secretary for Health (formerly the
    Chief Medical Director)); 
    38 U.S.C. § 7109
     (2000) (authorizing Board to
    obtain independent medical opinions from outside the VA); 
    38 C.F.R. § 20.901
    (a) (2002) (authorizing Board to obtain opinions from the
    Veterans Health Administration); 
    38 C.F.R. § 20.901
    (b) (authorizing Board
    to obtain medical opinions from the Armed Forces Institute of Pathology).
    
    Id. at 1347-48
    . The citation to 
    38 U.S.C. § 5107
    (a) referred to the pre-2000 code
    provision concerning the Secretary’s duty to assist claimants, and not the 2000 version.
    That earlier provision stated: “The Secretary shall assist such a claimant in developing
    the facts pertinent to the claim. Such assistance shall include requesting information as
    described in section 5106 of this title.” 
    38 U.S.C. § 5107
     (1994). The provision is now
    codified with amendments at 38 U.S.C. § 5103A, and the VA relied in part on this
    provision in promulgating 
    38 C.F.R. § 20.901
    . In light of our decision upholding the
    regulation under section 7109, we need not address petitioners’ argument that section
    5103A cannot be a source of Board authority, nor need we decide whether section
    5103A provides authority for the regulation.
    04-7117, -7128                             7
    (a) When, in the judgment of the Board, expert medical opinion, in addition
    to that available within the Department, is warranted by the medical
    complexity or controversy involved in an appeal case, the Board may
    secure an advisory medical opinion from one or more independent
    medical experts who are not employees of the Department.
    (b) The Secretary shall make necessary arrangements with recognized
    medical schools, universities, or clinics to furnish such advisory medical
    opinions at the request of the chairman of the Board. Any such
    arrangement shall provide that the actual selection of the expert or experts
    to give the advisory opinion in an individual case shall be made by an
    appropriate official of such institution.
    (c) The Board shall furnish a claimant with notice that an advisory medical
    opinion has been requested under this section with respect to the
    claimant's case and shall furnish the claimant with a copy of such opinion
    when it is received by the Board.
    
    38 U.S.C. § 7109
     (2000) (emphasis added). The petitioners agree that section 7109
    authorizes the Board to secure advisory medical opinions from “independent medical
    experts who are not employees” of the VA. But they argue that the statute does not
    authorize the securing of medical opinions from within the VA.
    However, the language of section 7109 explicitly provides that the Board may
    obtain a medical opinion when “in the judgment of the Board, expert medical opinion, in
    addition to that available within the Department, is warranted by the medical complexity
    or controversy involved in an appeal.” 
    Id.
     (emphasis added). In Lewis v. United States,
    
    244 U.S. 134
     (1917), the Supreme Court held that a similar statutory provision,
    assuming the existence of legislative action, was the equivalent of providing legislative
    authority. The issue in Lewis was whether the office of surveyor general of Louisiana
    had been abolished by statute. The relevant statute did not appear to expressly abolish
    04-7117, -7128                             8
    the office, rather, on its face it only appropriated funds in light of an assumed abolition of
    the office.4 The Supreme Court held:
    [W]hen Congress acted upon the assumption that the office was abolished
    and provided for the unfinished work pertaining to the surveys, “caused by
    the discontinuance” of the office, such action was tantamount to a direct
    repeal of the act creating the office and had the effect to abolish it.
    
    244 U.S. at 144
    .      In the present case Congress enacted section 7109 upon the
    assumption—expressed in the statutory text—that the Board had authority to procure an
    internal VA medical opinion. Under Lewis, such action is tantamount to a direct grant of
    authority to secure internal VA opinions in section 7109.5
    Even if the statutory text were not clearly an authorization, section 7109 was
    enacted against the background of a long-standing agency practice of securing internal
    VA medical opinions. This practice antedated the enactment of section 7109 in 1962.
    Act of Sept. 19, 1962, Pub. L. No. 87-671, 
    76 Stat. 557
    . The original House version of
    Public Law 87-671 would have explicitly required the Chief Medical Director to submit
    medical opinions to the Board in certain categories of cases. See 108 Cong. Rec.
    5517-18 (Apr. 2, 1962).       The Senate version of the bill removed the mandatory
    4
    The relevant statute provided:
    To enable the Secretary of the Interior to complete the unfinished drafting
    and field-note writing pertaining to surveys in the States of Minnesota,
    North Dakota, and Louisiana, caused by the discontinuance of the offices
    of the surveyors general in those States, six thousand five hundred dollars
    [is appropriated].
    Act of Mar. 4, 1909, 
    35 Stat. 945
    , 987 (emphasis added).
    5
    To be sure the dissent points out that the heading of § 7109 refers to
    “Independent medical opinions.” But the heading cannot limit the statutory authorization
    to such independent medical opinions because “the title of a statute and the heading of
    04-7117, -7128                               9
    requirement of securing medical opinions from the Chief Medical Director.            The
    legislative history makes clear that Congress was not in any way disapproving the
    Board’s then already-existing practice, but only wished to leave the Board with
    discretion over the matter. The Senate Report stated:
    The bill, as approved by the committee, makes no reference to the Board
    of Veterans’ Appeals securing an advisory opinion from the Chief Medical
    Director . . . since this is a matter within Agency discretion and ample
    authority for this practice now exists. In fact, the committee was informed
    that between 200 and 300 cases per year are currently submitted to the
    Chief Medical Director by the Board of Veterans’ Appeals for expert
    advisory opinions.
    S. Rep. No. 87-1844, at 2 (1962) (emphasis added). The Senate version of the bill was
    eventually passed. See 108 Cong. Rec. 18406 (Sept. 4, 1962); see also Padgett v.
    Nicholson, 
    19 Vet. App. 133
    , 141-42 (2005) (summarizing the legislative history of
    § 7109).   The legislative history shows that Congress in enacting section 7109
    contemplated that departmental medical opinions would be secured by the Board.6
    Both prior and subsequent to the enactment of section 7109, Congress has done
    nothing to disturb this well-settled agency practice, and as Senate Report 87-1844
    indicates, this inaction was intentional.   As the Supreme Court and this court have
    repeatedly held, congressional inaction in the face of long-standing agency practice can
    rise to the level of implied adoption. Thus in United States v. Midwest Oil Co., 236 U.S.
    a section cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v. Baltmore
    & Ohio R.R., 
    331 U.S. 519
    , 528-29 (1947).
    6
    See Br. of Disabled American Veterans at 18 (“[T]he report indicates that
    in 1962 the Committee believed there was authority for [the Board to obtain and
    consider medical opinions offered by VA employees].”). The 1962 legislative history is
    not undermined by the subsequent legislative history in a 1988 House Report, stating
    that the Board may “on its own initiative, obtain medical advice from independent
    medical specialists.” H.R. Rep. No. 100-963, at 15 (1988). This statement does not
    implicitly exclude obtaining medical opinions from within the VA.
    04-7117, -7128                              10
    459 (1915), the Court held that congressional silence in the face of a long-standing
    Executive practice of temporarily withdrawing public land from private acquisition (a
    practice that was reported to Congress) was “equivalent to consent to continue the
    practice until the power was revoked by some subsequent action by Congress.” Id. at
    481; see United States v. Am. Trucking Ass’ns, Inc., 
    310 U.S. 534
    , 549-50 (1940);
    Micron Tech., Inc. v. United States, 
    243 F.3d 1301
    , 1312 n.10 (Fed. Cir. 2001)
    (collecting cases); San Huan New Materials High Tech, Inc. v. Int’l Trade Comm'n, 
    161 F.3d 1347
    , 1355 (Fed. Cir. 1999) (noting that Congress ratifies agency practice when it
    legislates in that area of law covered by practice, with full awareness of agency’s
    practice, and does not change or refer to that practice). Here, the long-standing agency
    practice, recognized both in the legislative history and the text of section 7109, was
    specifically approved.
    As the dissent points out, reliance on long-standing agency practice must be
    tempered with some caution in the veterans context because judicial review was not
    provided until 1988. Thus in Brown v. Gardner, 
    513 U.S. 115
    , 122 (1994), the Supreme
    Court held a VA regulation invalid despite the fact that it had existed for over sixty years.
    Gardner is plainly distinguishable. In Gardner “the record of congressional discussion
    preceding reenactment [made] no reference to the VA regulation, and there [was] no
    other evidence to suggest that Congress was even aware of the VA’s interpretive
    position.” 
    Id. at 121
    .7 In contrast, when Congress enacted section 7109 it was not only
    7
    See also Schism v. United States, 
    316 F.3d 1259
    , 1297 (Fed. Cir. 2002)
    (en banc) (“[T]he Supreme Court has repeatedly made clear that an important
    foundation of acquiescence is that Congress as a whole was made aware of the
    administrative construction or interpretation and did not act on contrary legislation
    despite having this knowledge.”); Butterbaugh v. Dep’t of Justice, 
    226 F.3d 1332
    , 1342
    04-7117, -7128                              11
    aware of the Board’s practice of securing internal VA medical opinions, it explicitly
    recognized and endorsed that practice in both the legislative history and the statutory
    text.   Under these circumstances, Gardner does not undermine our conclusion that
    Congress has ratified and authorized the Board’s long-standing practice.         Sears v.
    Principi, 
    349 F.3d 1326
    , 1330 (Fed. Cir. 2003) (“When considering the legislative
    context of these provisions, it is also worth noting that the DVA regulation has been in
    place for many years, without legislative overruling, and despite frequent legislation by
    Congress.”).
    Finally, we reject petitioner American Legion’s argument that, even if the Board is
    authorized to secure VA opinions, it may not then consider them, for authority to
    consider an opinion inherently flows from the authority to secure it. We also note that,
    for the first time in its reply brief, the American Legion has argued that the current
    regulation is overbroad because it allows the securing of medical opinions from any
    “appropriate health care professional in the Veterans Health Administration” instead of
    only the Chief Medical Director, since the legislative history only noted the practice of
    receiving opinions from the Chief Medical Director. We reject that argument because
    section 7109 broadly permits the Board to obtain medical opinions from “within the
    Department” as a whole.
    Thus, we conclude that the statute authorizes the Board to secure medical
    opinions from “within the Department” while a claim is on appeal, and that the regulation
    is a valid exercise of that authority.
    (Fed. Cir. 2003) (“[C]ourts are loath to presume congressional endorsement unless the
    issue plainly has been the subject of congressional attention.”); Micron Tech., 
    243 F.3d at
    1311-12 & n.10.
    04-7117, -7128                             12
    CONCLUSION
    For the foregoing reasons, the petition for review is denied.
    DENIED
    No costs.
    04-7117, -7128                            13
    United States Court of Appeals for the Federal Circuit
    04-7117, -7128
    DISABLED AMERICAN VETERANS,
    Petitioner,
    and
    THE AMERICAN LEGION and
    THE NATIONAL VETERANS LEGAL SERVICES PROGRAM,
    Petitioners,
    v.
    SECRETARY OF VETERANS AFFAIRS,
    Respondent.
    MAYER, Circuit Judge, dissenting.
    Because neither 
    38 U.S.C. § 7109
    (a) nor 38 U.S.C. § 5103A authorizes the
    Board of Veterans’ Appeals to secure medical opinions from Department of Veterans
    Affairs (“VA”) employees, and because neither provides an exception to the requirement
    of 
    38 U.S.C. § 7104
    (a) that “[a]ll questions . . . subject to decision by the Secretary shall
    be subject to one review on appeal,” 
    38 C.F.R. § 20.901
    (a) is invalid.               Section
    20.901(a)1 is inconsistent with section 7104(a)2 because it denies appellants “one
    review on appeal to the Secretary” when, absent a veteran’s waiver, it allows the board
    to seek and consider medical opinions from health care professionals from within VA
    without remanding the case to the agency of original jurisdiction, or regional office, for
    initial consideration.   Disabled Am. Veterans v. Sec’y of Veterans Affairs, 
    327 F.3d 1339
    , 1345-48 (Fed. Cir. 2003) (“DAV I”). “Together, [38 U.S.C.] §§ 511(a) and 7104(a)
    dictate that the Board acts on behalf of the Secretary in making the ultimate decision on
    claims and provides ‘one review on appeal to the Secretary’ of a question ‘subject to
    decision by the Secretary’ under § 511(a).” Id. at 1347. The board was not created by
    the Secretary and does not operate under any authority delegated to it by the Secretary.
    See 
    38 U.S.C. § 7101
    (a). To the contrary, the clear congressional design and purpose
    was to create an appellate body independent of the Secretary to review decisions of the
    various VA agencies of original jurisdiction.    “The Board is ‘primarily an appellate
    tribunal’ of the VA that decides appeals from denials of claims for veterans’ benefits,”
    DAV I, 
    327 F.3d at 1346
     (quoting Scates v. Principi, 
    282 F.3d 1362
    , 1366-67 (Fed. Cir.
    2002)), and Congress must expressly grant it authority to consider evidence in the first
    instance.
    1
    The challenged regulation allows the board to “obtain a medical opinion
    from an appropriate health care professional in the Veterans Health Administration of
    the Department of Veterans Affairs on medical questions involved in the consideration
    of an appeal when, in its judgment, such medical expertise is needed for equitable
    disposition of an appeal.” 
    38 C.F.R. § 20.901
    (a) (2004).
    2
    Section 7104(a) mandates, in pertinent part, that “All questions in a matter
    which under section 511(a) of this title is subject to decision by the Secretary shall be
    subject to one review on appeal to the Secretary.”
    04-7117,-7128                               2
    The Secretary relies primarily on section 7109(a)3 to provide the exception to the
    board’s appellate jurisdiction.   Nothing in section 7109(a), however, authorizes the
    Secretary to augment the board’s jurisdiction with authority to consider new medical
    opinions obtained from within the VA. Section 7109 is tellingly entitled “Independent
    medical opinions” and provides only that “the Board may secure an advisory medical
    opinion from one or more independent medical experts who are not employees of the
    Department.” (Emphasis added).
    The Secretary, and the court, rely entirely on the nonessential phrase “in addition
    to that available within the Department” contained in section 7109(a) to justify the
    regulation. This language is not a grant of authority; it simply distinguishes preexisting
    VA medical opinions from the congressional authorization for the board to request
    independent medical opinions. A plain reading of the statute finds only one grant of
    authority allowing the board to secure and consider medical opinions from “independent
    medical experts who are not employees of the Department,” which does not extend to
    medical opinions from within the VA.
    Similarly, 38 U.S.C. § 5103A4 does not support 
    38 C.F.R. § 20.901
    (a). Within the
    Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, Congress imposed a
    3
    
    38 U.S.C. § 7109
    (a) provides: “Independent medical opinions -- (a)
    When, in the judgment of the Board, expert medical opinion, in addition to that available
    within the Department, is warranted by the medical complexity or controversy involved
    in an appeal case, the Board may secure an advisory medical opinion from one or more
    independent medical experts who are not employees of the Department.”
    4
    Section 5103A(d) requires, in pertinent part, that “[i]n the case of a claim
    for disability compensation, the assistance provided by the Secretary under subsection
    (a) [duty to assist] shall include providing a medical examination or obtaining a medical
    opinion when such an examination or opinion is necessary to make a decision on the
    claim.”
    04-7117,-7128                                3
    number of specific duties and responsibilities on the Secretary to assist claimants, as
    set forth in 38 U.S.C. § 5103A.     For instance, it requires the Secretary to provide
    medical opinions when necessary to properly evaluate a claim for benefits. Neither the
    statutory language of section 5103A(d), nor the legislative history of the Veterans
    Claims Assistance Act of 2000, permits the Secretary to delegate authority to obtain
    medical opinions from within the VA to the board.
    The Secretary relies on the historic board practice of requesting medical opinions
    from within the VA. But until recently, VA regulations “were explicitly insulated from
    judicial review.” H.R. Rep. No. 100-963, 100th Cong., 2d Sess. 10, reprinted in 1988
    U.S.C.C.A.N. 5782, 5791.     “Many VA regulations have aged nicely simply because
    Congress took so long to provide for judicial review. The length of such regulations’
    unscrutinized and unscrutinizable existence, however, does not in itself form a basis for
    us to presume they are valid and therefore defer to them. If anything, Congress’s
    lengthy deliberation and carefully crafted scheme for judicial review of VA regulations
    counsels for vigorous review.” Gardner v. Brown, 
    5 F.3d 1456
    , 1463-64 (Fed. Cir.
    1993), aff’d, 
    513 U.S. 115
    , 121-22 (1994) (reasoning that “congressional silence lacks
    persuasive significance, particularly where administrative regulations are inconsistent
    with the controlling statute,” and that “[a] regulation’s age is no antidote to clear
    inconsistency with a statute”) (internal citations and quotations omitted). To suggest
    that congressional authority is not required to sustain a regulation simply because the
    regulation condones a long standing practice eviscerates the role of Congress.
    “[E]ven though the amendments to § [20.901(a)] may further the VA’s stated
    objective of efficiency, striking the sensible balance between decreasing appeal
    04-7117,-7128                              4
    processing times and the competing public policy of protecting an appellant’s right to
    due process is a matter for Congress, not this court.” See DAV I, 
    327 F.3d at 1348
    .
    Section 20.901(a) is invalid because the Secretary has countermanded the appellate
    role of the board without congressional authority.
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