## Facts

- A veterans-benefits claim pending before the Board of Veterans’ Appeals sought compensation under 38 U.S.C. § 1151 based on an alleged VA failure to diagnose or treat a cardiac condition leading to death.
- The Chairman of the Board requested a precedential legal opinion from the VA General Counsel addressing how § 1151 applies to failures to diagnose or treat and what elements must be proven.
- The General Counsel issued a written opinion under VA regulations authorizing formal legal advice; VA treated designated General Counsel opinions as precedential and binding on Board adjudication.
- A summary of the opinion was published in the Federal Register.
- Paralyzed Veterans of America petitioned the U.S. Court of Appeals for the Federal Circuit for direct review, asserting the opinion functioned as a “final rule” or “regulation.”

## Issues

1. Whether the Federal Circuit has statutory jurisdiction to directly review a VA General Counsel precedential opinion as a “rule” or “regulation.”

## Decision

- The Federal Circuit dismissed the petition for review for lack of jurisdiction.
- The court held it was not authorized to directly review the VA General Counsel’s opinion.
- The court treated the challenged document as an internal, case-triggered legal interpretation issued within the adjudicatory process, not a reviewable regulation.

## Legal Principles

- A VA General Counsel “precedent opinion” that binds the Board under 38 U.S.C. § 7104(c) is distinct from VA “regulations” and is not automatically subject to direct Federal Circuit review.
- The binding or precedential effect of an agency legal opinion within the agency does not convert that opinion into a regulation for purposes of direct judicial review.
- Publication (or summarized publication) in the Federal Register does not, by itself, transform an adjudicatory legal opinion into a reviewable rule.
- Challenges to a General Counsel’s interpretation generally must proceed through the ordinary veterans-benefits appellate path: Board decision, appeal to the Court of Appeals for Veterans Claims, and then Federal Circuit review on qualifying legal questions.

## Conclusion

The Federal Circuit held it lacked jurisdiction to directly review a VA General Counsel precedential opinion and required that any challenge to such an interpretation occur through review of a final Board decision in the established veterans-benefits appellate process.


Paralyzed Veterans of Am. v. Sec'y of Veterans Affs., 308 F.3d 1262 (Fed. Cir. 2002)