Background
Vaughn M. Gordon, an Army veteran, sought service-connected benefits for bilateral hearing loss. The Department of Veterans Affairs granted service connection but assigned a noncompensable, or zero-percent, disability rating. The Board of Veterans’ Appeals denied Gordon an initial compensable rating.
Gordon argued before the Veterans Court that a zero-percent rating unlawfully creates an eleventh disability grade beyond the ten compensable grades specified in 38 U.S.C. §§ 1114 and 1155 and conflicts with § 1110’s compensation requirement. The Veterans Court concluded that 38 U.S.C. § 7252(b) barred it from reviewing this substantive challenge to the VA rating schedule and affirmed the Board, although the Federal Circuit observed that the ruling effectively dismissed the appeal.
The Court’s Holding
The Federal Circuit dismissed Gordon’s appeal for lack of jurisdiction. Under 38 U.S.C. §§ 7252(b) and 7292(a), neither the Veterans Court nor the Federal Circuit may review a substantive statutory challenge to the VA disability-rating schedule. The court held that Gordon’s attack on zero-percent ratings was identical to the challenge rejected on jurisdictional grounds in Wingard v. McDonald.
The panel rejected Gordon’s reliance on Frazier v. McDonough, which had addressed a similar argument on the merits after it was raised for the first time in the Federal Circuit and no party disputed jurisdiction. The panel explained that the differing procedural postures accounted for the decisions’ different approaches and that, to the extent the precedents conflicted, the earlier Wingard decision controlled.
Key Takeaways
- The Veterans Court cannot review whether the VA rating schedule’s inclusion of zero-percent ratings violates governing statutes.
- The Federal Circuit likewise lacks jurisdiction over that substantive challenge when it reaches the court on appeal from the Veterans Court.
- Frazier did not displace Wingard; any conflict between the decisions must be resolved in favor of the earlier precedent.
Why It Matters
The decision reaffirms a significant jurisdictional limit on judicial review of the VA disability-rating schedule. Veterans cannot obtain review in the Veterans Court or Federal Circuit of a claim that the schedule itself violates federal statutes by allowing noncompensable ratings.
The opinion also clarifies that Frazier’s merits discussion does not authorize courts to hear such challenges in cases governed by Wingard, underscoring the importance of procedural posture and the Federal Circuit’s rule that earlier panel precedent controls.