Latest Case: National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans' Affairs (Civil Procedure)

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National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans' Affairs

Docket: 20-1321

Opinion Date: December 8, 2020

Judge: Timothy B. Dyk

Areas of Law: Civil Procedure, Government & Administrative Law, Military Law, Public Benefits

The National Organization of Veterans’ Advocates (NOVA), sought review under 38 U.S.C. 502. The Knee Joint Stability Rule, promulgated in 2018 and set forth in the Veterans Affairs Adjudication Procedures Manual, assigns a joint instability rating under Diagnostic Code (DC) 5257, 38 C.F.R. 4.71a, based on the amount of movement that occurs within the joint. The Knee Replacement Rule provides that evaluation under DC 5055, 38 C.F.R. 4.71a, is not available for partial knee replacement claims. The Replacement Rule was published in the Federal Register in 2015, stating that section 4.71a was amended to explain that “'prosthetic replacement’ means a total, not a partial, joint replacement.” It was published in a 2016 Manual provision, which informs regional office staff that evaluation under DC 5055 is not available for partial knee replacement claims filed on or after July 16, 2015. The Federal Circuit referred the case for adjudication on the merits. NOVA has standing because it has veteran members who are adversely affected by the Rules. The Manual provision is an interpretive rule reviewable under 38 U.S.C. 502 and constitutes final agency action. The Knee Replacement Rule is a final agency action. The merits panel will determine whether the Manual provision or the Federal Register publication constitutes the reviewable agency action. The challenge is timely under the six-year statute of limitations, 28 U.S.C. 2401(a); Federal Circuit Rule 15(f), establishing a 60-day time limit for bringing section 502 petitions, is invalid.