## Facts

- Edward T. Splane, a veteran, sought service connection for multiple sclerosis (MS) based on the statutory presumption for MS manifesting to a compensable degree within seven years after separation from wartime service.
- The Board of Veterans’ Appeals denied the claim, finding Splane showed MS symptoms before service and concluding the presumption did not apply because the condition preexisted service and was not aggravated by service.
- The Court of Appeals for Veterans Claims granted a joint motion to remand for further development and a supplemental Board opinion.
- On remand, the Board’s Chairman requested interpretive guidance from the VA General Counsel, who issued VAOPGCPREC 14-98, a precedential opinion addressing interpretation of the presumptive service-connection statutes and related provisions.
- Splane and Paralyzed Veterans of America petitioned the Federal Circuit under 38 U.S.C. § 502 to review VAOPGCPREC 14-98, arguing (1) procedural defects under the APA and FOIA and (2) an unlawful statutory interpretation that restricted the effective-date reach of a liberalizing amendment affecting presumptive coverage for diseases including MS.

## Issues

1. Whether a VA General Counsel precedential opinion must be issued through APA notice-and-comment rulemaking, and whether failure to do so invalidates it.
2. Whether the VA satisfied FOIA publication/indexing requirements for such opinions, and whether any alleged FOIA violation affects the opinion’s validity.
3. Whether the General Counsel’s effective-date and retroactivity interpretation unlawfully limited the application of a liberalizing amendment to the presumptive service-connection scheme for MS.

## Decision

- The Federal Circuit held it had authority under 38 U.S.C. § 502 to review the challenged General Counsel action.
- The court rejected the APA challenge, holding VAOPGCPREC 14-98 was an interpretive rule/advisory opinion exempt from notice-and-comment procedures.
- The court rejected the FOIA challenge, finding the agency satisfied FOIA availability/indexing requirements and that petitioners were not prejudiced.
- The court granted the petition in part on the merits, holding one statutory interpretation in VAOPGCPREC 14-98 was not in accordance with law.
- The court vacated the portion of VAOPGCPREC 14-98 that impermissibly restricted application of the liberalizing amendment through its effective-date/retroactivity analysis, and left the remainder of the opinion in effect.

## Legal Principles

- VA General Counsel precedential opinions may qualify as reviewable agency actions under 38 U.S.C. § 502 when they fall within categories referenced by APA/FOIA provisions.
- Interpretive rules that construe existing statutes and regulations generally are exempt from APA notice-and-comment requirements.
- FOIA requires agencies to make covered opinions available and properly indexed; a challenger must show a meaningful violation affecting enforceability or causing prejudice.
- In reviewing VA statutory interpretations, courts apply a Chevron-type framework: unambiguous statutory text controls; otherwise, a reasonable agency interpretation may receive deference.
- Liberalizing veterans’ benefits amendments may not be categorically withheld from earlier-filed or pending claims absent clear statutory direction; effective-date limits must be grounded in the governing effective-date statute rather than agency-imposed filing-date cutoffs.

## Conclusion

The Federal Circuit upheld VAOPGCPREC 14-98 against procedural attacks under the APA and FOIA, but vacated the opinion’s restrictive effective-date interpretation because it conflicted with the governing statutes and unlawfully narrowed the reach of a liberalizing change to presumptive service connection for MS.


Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000)