NOVA: Pre-2021 version of DC 5055 applies to partial knee replacements

NOVA v. Secretary of VA, 48 F.4th 1307 (Fed. Cir. 2022)

HELD: DC 5055 did not unambiguously exclude partial knee replacements.

Summary: In Hudgens v. McDonald, VA denied a 100% rating for a veteran’s partial knee replacement because it determined that DC 5055 only applied to TOTAL knee replacements. The CAVC affirmed – and Mr. Hudgens appealed to the Federal Circuit. Less than two weeks before the Secretary’s brief was due, VA published its “Knee Replacement Guidance,” which said it was VA’s “long-standing interpretation” of the regulations that the 100% rating only applied to total knee replacements – and that an “explanatory note” saying this would be added to 38 CFR 4.71a. Despite this (or maybe because of this?), the Federal Circuit reversed the CAVC’s decision and held that DC 5055 doesn’t unambiguously exclude partial knee replacements.

Four years later, VA amended DC 5055 – following notice and comment rulemaking – to clarify the intent that this DC only applies to total knee replacements. The change became effective on Feb. 7, 2021.

NOVA petitioned the Federal Circuit to invalidate the new rule. The Court first determined that the GUIDANCE was “final agency action” that could be reviewed under 38 USC § 502 – and determined that it was arbitrary & capricious – because it inserted an explanatory note into DC 5055 (the regulation) WITHOUT going through notice-and-comment rulemaking. VA promulgated DC 5055 in 1978 following such rulemaking. Therefore, VA can’t amend DC 5055 without going through that same process.

The Federal Circuit refused to defer to the Agency’s interpretation because it was inconsistent with numerous Board decisions that rated partial knee replacements under DC 5055.

Advocacy note: This case is a good example of using Board decisions for their persuasive value.

Skaar: Only claimants who have appealed a Board decision or are still able to can be part of a proposed class

Skaar v. McDonough, 48 F.4th 1323 (Fed. Cir. 2022)

HELD: In order to participate as a member of a class action at the CAVC, the proposed class member must have either appealed a Board decision or must be able to appeal a Board decision.

Summary: A group of veterans who were exposed to radiation at Palomares challenged the evidence used for dose estimates. The CAVC certified a class that was comprised of (1) present claimants (those who had appealed or could still appeal a Board denial); (2) present-future claimants (those who had a claim still pending before the RO or Board); and (3) future-future claimants (those who had not yet filed a claim with the RO). The Secretary appealed to the Federal Circuit, which held that only claimants who have timely appealed a Board decision to the Court or who were still able to appeal can be part of the proposed class. The CAVC’s jurisdiction is defined by 38 U.S.C. § 7252 only. There is no supplemental jurisdiction and class certification doesn’t create jurisdiction.