Paralyzed Veterans Of America, v. Secretary Of Veterans Affairs

308 F.3d 1262 (Fed. Cir. 2002)


The Chairman of the Board of D made a written request, in the form of a memorandum, to the Department's General Counsel. The Chairman described the facts involving a claim to compensation under 38 U.S.C. § 1151. D had failed to diagnose a veteran's cardiac illness in examining him at an outpatient clinic, which resulted in the veteran's subsequent death of a heart attack. The Chairman requested the General Counsel's 'opinion' on two questions: (1) 'does 38 U.S.C.A. § 1151 . . . contemplate compensation for the absence or failure (by omission) of VA to diagnose or treat an underlying disease or injury, or does 38 U.S.C.A. § 1151 only contemplate compensation for medical treatment or submission to an examination which involves acts of commission by VA?'; (2) if the former standard applies, 'what are the essential elements of such a claim which must be established in order for a claimant to prevail?' A Department regulation authorized specified officials to request formal legal advice from the General Counsel, including the interpretation of statutes or regulations. A statute provides that 'the Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.' Two years later, the General Counsel responded in an 11-page single-spaced memorandum and answered the two questions the Chairman had posed. P filed in this court a petition to review 'the validity of' the General Counsel's opinion. P described that opinion 'as a final rule.'