Nova v. Secretary of Veterans Affairs , 927 F.3d 1263 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
NATIONAL ORGANIZATION OF VETERANS’
ADVOCATES, INC.,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2018-1391
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________
Decided: June 24, 2019
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for petitioner.
MARTIN F. HOCKEY, JR., Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM,
JOSEPH H. HUNT; MARTIE ADELMAN, BRIAN D. GRIFFIN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
2 NOVA v. SECRETARY OF VETERANS AFFAIRS
Before DYK, WALLACH, and STOLL, Circuit Judges.
DYK, Circuit Judge.
The National Organization of Veterans’ Advocates, Inc.
(“NOVA”) challenges the validity of a rule promulgated by
the Veterans Administration (“VA”). The rule is a 2017
amendment to 38 C.F.R. § 3.321(b)(1). The amended regu-
lation cabined the preexisting regulation (as interpreted by
this court in Johnson v. McDonald, 762 F.3d 1362 (Fed.
Cir. 2014)). The amended regulation authorizes the VA
“[t]o accord justice to the exceptional case where the sched-
ular evaluation is inadequate to rate a single service-con-
nected disability,” by adopting “an extra-schedular
evaluation commensurate with the average impairment of
earning capacity due exclusively to the disability.” 38
C.F.R. § 3.321(b)(1) (2017) (emphases added). Unlike the
previous version, the regulation does not permit the VA to
award extra-schedular disability compensation by consid-
ering the synergistic impact of multiple disabilities to-
gether.
We deny NOVA’s petition and hold that the 2017
amendment is not on its face arbitrary, capricious, an
abuse of discretion, or otherwise contrary to law.
BACKGROUND
I
One of the primary tasks of the VA is to process claims
for service-connected disability benefits sought by veter-
ans. Once the VA has determined the existence of a disa-
bility, the VA must rate the disability, that is, determine
the degree to which the veteran’s earning capacity has been
diminished. In that connection, the statute provides:
The Secretary shall adopt and apply a schedule of
ratings of reductions in earning capacity from spe-
cific injuries or combination of injuries. The ratings
shall be based, as far as practicable, upon the
NOVA v. SECRETARY OF VETERANS AFFAIRS 3
average impairments of earning capacity resulting
from such injuries in civil occupations. . . .
38 U.S.C. § 1155.
Pursuant to this statute, the VA rates disabilities ac-
cording to a rating schedule that takes into account the vet-
eran’s degree of disability and the effect of that disability
on the veteran’s earning capacity. For example, where the
veteran suffered a service-connected injury with a small
impact on his earning capacity, he might be assigned a 20%
rating. But if the veteran suffered a more serious injury
that had a greater impact on the veteran’s earning capac-
ity, that veteran would receive a higher rating.
The regulation at issue in this case, 38 C.F.R.
§ 3.321(b)(1), was designed to address exceptional situa-
tions in which the schedular rating for a single disability
alone is inadequate to reflect the actual level of the earning
impairment on the veteran. Before this regulation was
amended in 2017, it provided:
To accord justice . . . to the exceptional case where
the schedular evaluations are found to be inade-
quate, the Under Secretary for Benefits or the Di-
rector, Compensation and Pension Service, upon
field station submission, is authorized to approve
on the basis of the criteria set forth in this para-
graph an extra-schedular evaluation commensu-
rate with the average earning capacity impairment
due exclusively to the service-connected disability
or disabilities. The governing norm in these excep-
tional cases is: A finding that the case presents
such an exceptional or unusual disability picture
with such related factors as marked interference
with employment or frequent periods of hospitali-
zation as to render impractical the application of
the regular schedular standards.
38 C.F.R. § 3.321(b)(1) (2014) (emphases added).
4 NOVA v. SECRETARY OF VETERANS AFFAIRS
Thus, this regulation provided for extra-schedular rat-
ing of the veteran’s disabilities where the Board of Veter-
ans Appeals (“Board”) or regional office determined that
the schedular evaluation “does not contemplate the claim-
ant’s same symptomatology or level of disability” and that
the veteran’s disability picture evinces “related factors
such as marked interference with employment or frequent
periods of hospitalization.” Barton F. Stichman et al., Vet-
erans Benefits Manual § 5.3 (2017–18 ed.); see also Thun v.
Peake, 22 Vet. App. 111, 115–16 (2008), aff’d, 572 F.3d 1366
(Fed. Cir. 2009).
II
The present controversy arises from the fact that, in
many cases, the veteran has more than one disability.
Where a veteran suffers from more than one disability, the
VA generally combines the individual disability ratings
pursuant to a “combined ratings table” set forth in 38
C.F.R. § 4.25. The formula on which the table is based re-
quires that the disabilities first be “arranged in the exact
order of their severity, beginning with the greatest disabil-
ity.” 38 C.F.R. § 4.25(a). The percent efficiency for the
highest rated disability is then determined—e.g., if a disa-
bility earns a 60% rating, the efficiency is 40%. Id. From
there, the percent efficiency corresponding to the next
highest rated disability is determined, and the first and
second percent efficiencies are multiplied. Id. If there are
more than two disability ratings, the process is then re-
peated with each lesser rating. Id. This results in an over-
all percent efficiency, which must then be converted to a
corresponding disability rating. 1 Id. This number is then
1 This calculation can be expressed in mathematical
terms: Combined Rating = 1 – [(1 – %rating1) (1 – %rat-
ing2)]. Thus, if a veteran received two disability ratings of
60% and 30%, the combined disability rating could be found
using the equation as follows:
NOVA v. SECRETARY OF VETERANS AFFAIRS 5
rounded “to the nearest degree divisible by 10, adjusting
final 5’s upward.” Id. 2
Section 4.25 operates the same way in the case of extra-
schedular ratings for multiple disabilities. Section
3.321(b)(1) requires considering whether each individual
disability should result in an extra-schedular rating so that
multiple disabilities can result in multiple extra-schedular
ratings. There is no dispute that § 4.25 requires the VA to
combine multiple disabilities resulting from extra-schedu-
lar ratings under § 3.321(b)(1). This approval is indeed rec-
ognized in the current rulemaking where the VA made
clear that “a veteran would be entitled to an extra-
Combined Rating = 1 – [(1 – 0.6)(1 – 0.3)] = 0.72
The calculation would thus yield a total combined rating of
72%, which is confirmed by the chart in 38 C.F.R. § 4.25.
Per the regulation, 72% would be rounded to the nearest
value divisible by 10, or 70%.
2 The VA has promulgated a few regulations that
grant particular ratings for certain combinations of disabil-
ities. For example, in the case of muscle injuries, 38 C.F.R.
§ 4.55(e) provides that “[f]or compensable muscle group in-
juries which are in the same anatomical region but do not
act on the same joint, the evaluation for the most severely
injured muscle group will be increased by one level and
used as the combined evaluation for the affected muscle
groups.” Another regulation, 38 C.F.R. § 4.26, also pro-
vides a special rating where a veteran has bilateral service-
connected disabilities—e.g. if the veteran’s “partial disabil-
ity results from disease or injury of both arms, or of both
legs, or of paired skeletal muscles.” In such cases, “the rat-
ings for the disabilities of the right and left sides will be
combined as usual, and 10 percent of this value will be
added (i.e., not combined) before proceeding with further
combinations or converting to degree of disability.” Id.
6 NOVA v. SECRETARY OF VETERANS AFFAIRS
schedular rating for each service-connected disability that
satisfies the criteria in the rule.” Extra-Schedular Evalua-
tions for Individual Disabilities, 82 Fed. Reg. 57,830,
57,832 (Dec. 8, 2017).
However, for many years, the VA interpreted
§ 3.321(b)(1) to bar consideration of the synergistic effect of
multiple disabilities. In other words, where a veteran had
multiple disabilities that together formed that veteran’s
disability picture, the VA was required to evaluate each
disability in isolation to determine to what extent extra-
schedular rating was appropriate for each, and then to
combine those ratings through the methodology set forth in
38 C.F.R. § 4.25. But the VA would not consider the two
disabilities together in arriving at the extra-schedular rat-
ing for the most prominent disability.
This methodology was challenged in Johnson as being
contrary to the plain language of the regulation. We
agreed. We held that the plain language of the regulation,
using the plural “evaluations” and “disabilities,” unambig-
uously indicated that the combined effect of multiple disa-
bilities could be considered in determining an extra-
schedular rating for a single disability. Id. at 1365–66.
This court also concluded that such an understanding of
the regulation was consistent with the text of § 1155, which
authorizes the Secretary to “adopt and apply a schedule of
ratings of reductions in earning capacity from . . . [a] com-
bination of injuries.” 38 U.S.C § 1155; Johnson, 762 F.3d
at 1365.
III
Following Johnson, the VA commenced the present
rulemaking proceeding. On April 20, 2016, the VA issued
a Notice of Proposed Rulemaking, which recognized that
this court in Johnson had interpreted its previous regula-
tion contrary to the VA’s longstanding interpretation. The
stated purpose of the proposed amendment was to “clarify
VA’s regulation pertaining to exceptional compensation
NOVA v. SECRETARY OF VETERANS AFFAIRS 7
claims such that an extra-schedular evaluation is available
only for an individual service-connected disability but not
for the combined effect of more than one service-connected
disability”—i.e., confirming the VA’s interpretation of the
old regulation prior to Johnson. Extra-Schedular Evalua-
tions for Individual Disabilities, 81 Fed. Reg. 23,228,
23,228 (Apr. 20, 2016). The final, amended rule was pub-
lished in the Federal Register on December 8, 2017, and
provides (with relevant changes underscored):
To accord justice to the exceptional case where the
schedular evaluation is inadequate to rate a single
service-connected disability, the Director of Com-
pensation Service or his or her delegate is author-
ized to approve on the basis of the criteria set forth
in this paragraph (b), an extra-schedular evalua-
tion commensurate with the average impairment of
earning capacity due exclusively to the disability.
The governing norm in these exceptional cases is a
finding by the Director of Compensation Service or
delegatee that application of the regular schedular
standards is impractical because the disability is so
exceptional or unusual due to such related factors
as marked interference with employment or fre-
quent periods of hospitalization.
38 C.F.R. § 3.321(b)(1) (2017) (emphases added). The VA
deleted any reference to the plural, “disabilities,” so that
extra-schedular ratings could only be provided based on
considering each disability individually and then combin-
ing the effect under § 4.25. It would not consider the syn-
ergistic effect, if any, of multiple disabilities on the rating
for a single disability.
NOVA timely petitioned this court for review of the fi-
nal rule. We have jurisdiction under 38 U.S.C. § 502.
8 NOVA v. SECRETARY OF VETERANS AFFAIRS
DISCUSSION
I
On review, NOVA does not contend that the VA lacked
statutory authority to change its rule or that the amended
regulation is inconsistent with the statute (38 U.S.C.
§ 1155). Nor could such a challenge succeed given that the
statute does not refer to extra-schedular ratings or require
that the VA adopt extra-schedular ratings. NOVA also
does not contend that the language of the amended regula-
tion failed to effectuate a change or that the language of
the amended regulation is unclear. On its face, the
amended regulation deletes the language referring to “dis-
abilities” in the plural, the very language that Johnson
held required the consideration of the synergistic effect of
multiple disabilities. Johnson, 762 F.3d at 1365–66.
NOVA instead contends that the VA’s action in making
the change was arbitrary and capricious. NOVA’s argu-
ment amounts to essentially a complaint that the VA’s gen-
eral rule for evaluating extra-schedular ratings is arbitrary
because it does not take into account the full extent of a
veteran’s overall disability in cases of multiple disabilities
(i.e., it does not permit the VA to look to the synergistic
effect of multiple disabilities), and because the VA did not
adequately explain why it was not feasible or desirable to
take account of the synergistic effect of multiple disabili-
ties.
We review petitions challenging a rulemaking under 38
U.S.C. § 502 to determine whether it is “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with the law.” See 5 U.S.C. § 706; Paralyzed Veterans of
Am., Inc. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1339
(Fed. Cir. 2003). “This review is ‘highly deferential’ to the
actions of the agency.” Paralyzed Veterans, 345 F.3d at
1340 (quoting Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y
of Veterans Affairs, 260 F.3d 1365, 1372 (Fed. Cir. 2001)).
The same standard of review applies to the amendment of
NOVA v. SECRETARY OF VETERANS AFFAIRS 9
a regulation as applies to a regulation’s adoption. F.C.C. v.
Fox Television Stations, Inc., 556 U.S. 502, 513–15 (2009).
Where there is a “rational connection between the facts
found and the choice made,” a regulation is not arbitrary
and capricious. Nat’l Org. of Veterans’ Advocates, Inc. v.
Sec’y of Veterans Affairs, 669 F.3d 1340, 1348 (Fed. Cir.
2012) (quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Under this deferential standard, we conclude that the
VA’s explanation for the change was adequate and that the
regulation is not on its face arbitrary and capricious. First,
contrary to the petitioner’s argument, the amended regula-
tion does not limit “extraschedular rating to a single ser-
vice connected disability.” Petitioner’s Br. 8. As we have
explained earlier, the regulation provides for combining
multiple disabilities, albeit not in the manner the peti-
tioner suggests is appropriate. 3
The VA also explained that a regulation requiring con-
sideration of the synergistic effects of multiple disabilities
would be untenable because it would be difficult to admin-
ister in a “logical and consistent manner.” 82 Fed. Reg. at
57,831. In order to award an extra-schedular rating, a de-
termination must be made that “existing rating-schedule
3 In the final rulemaking, the VA stated that
the claimant could, under this rule, seek extra-
schedular ratings for the individual conditions and
VA would be required to evaluate the medical evi-
dence in determining whether the rating schedule
was adequate to evaluate each disabling condition,
but would not be required to separately determine
whether the combined rating resulting from 38
C.F.R. 4.25 was adequate to evaluate the combined
effects of the multiple disabilities.
82 Fed. Reg. at 57,833.
10 NOVA v. SECRETARY OF VETERANS AFFAIRS
provisions are inadequate to evaluate a particular claim-
ant’s disability.” Id. This determination “requires compar-
ison of the manifestations of the claimant’s disability with
the types of manifestations listed in the applicable rating
schedule provisions.” Id. The rating schedule for individ-
ual disabilities describes the manifestations of each disa-
bility and therefore serves as a baseline from which a
decisionmaker can determine whether the rating accounts
for a veteran’s particular disability picture.
On the other hand, “[r]atings for combinations of disa-
bilities are determined by application of a standard for-
mula in 38 C.F.R. [§] 4.25, and there are thus no provisions
in the rating schedule describing impairments that would
be associated with [the synergistic effects of] a particular
combination of disabilities.” Id. Accordingly, the VA ex-
plained that “VA adjudicators would have no objective
standard for determining whether a particular combined
rating is adequate or inadequate.” Id. The VA contends
that this would “lead to inconsistent and highly subjective
determinations, and would likely cause delays in the adju-
dication of claims”—effects that would “be detrimental to
claimants and to the effective operation of VA’s claims-ad-
judication system.” Id.
The VA also explained that its amendment to the reg-
ulation is consistent with the agency’s historical interpre-
tation of the regulation and its predecessors. Since 1936,
the VA “has interpreted section 3.321(b)(1) [and its prede-
cessor regulation] to provide for extra-schedular evaluation
for each service-connected disability for which the schedu-
lar evaluation is inadequate based upon the regulatory cri-
teria.” Id. This interpretation has been reflected in the
Department of Veterans Benefits Veterans Administration
Manual. See 82 Fed. Reg. at 57,832. The fact that our court
concluded that the language of the earlier regulation re-
quired contrary interpretation does not undermine the
VA’s showing as to the intended effect of the earlier regu-
lation.
NOVA v. SECRETARY OF VETERANS AFFAIRS 11
According to the VA, the amended formulation of the
regulation also makes sense in light of the regulatory
scheme of which § 3.321(b)(1) is a part. The VA noted that
“there is a distinction between the application of the sched-
ular criteria relating to specific disabilities and the appli-
cation of the formula . . . for combining individual
disability ratings.” 82 Fed. Reg. at 57,832. To this end, the
VA pointed out that regulations other than § 3.321(b)(1) al-
ready prescribe how combinations of disabilities should be
rated. For example, 38 C.F.R. § 4.25 provides a formula for
combining individual disability ratings. And this formula
for combining disability ratings applies equally to extra-
schedular ratings.
There is no reason to assume that the “VA may only
‘accord justice’ if all service-connected disabilities are con-
sidered collectively for deciding entitlement to an extra-
schedular evaluation.” 82 Fed. Reg. at 57,832. Nor is there
reason to believe that justice may only be served by requir-
ing ad hoc adjudications of whether combinations of disa-
bilities deserve extra-schedular rating. 4
II
To be sure, another regulation not at issue here, 38
C.F.R. § 4.16, authorizes a deciding official to take into ac-
count a veteran’s “overall impairment” and “determine
whether the veteran is employable regardless of the partic-
ular disability rating or combination of disability ratings
awarded.” 82 Fed. Reg. at 57,833. On this basis, a deciding
official may determine that a veteran qualifies for a total
disability (“TDIU”) rating even though the combination of
disabilities from which the veteran suffers does not
4 The VA’s amendment to § 3.321(b)(1) also does not
defeat veterans’ reliance interests as NOVA contends, be-
cause the amendment is applied only prospectively. 82
Fed. Reg. at 57,830.
12 NOVA v. SECRETARY OF VETERANS AFFAIRS
otherwise qualify the veteran for such a rating. Sec-
tion 4.16(b) thus authorizes a rating above what the com-
bined schedular ratings for multiple disabilities would
otherwise authorize if the veteran has been “unable to se-
cure and follow a substantially gainful occupation by rea-
son of service-connected disabilities.” But this
determination can be made consistently across the board
because it requires only a determination of total unemploy-
ability. We see no inconsistency in allowing a TDIU rating
based on the combined effect of multiple disabilities and
declining to follow that approach outside of the TDIU con-
text.
Significantly, during the rulemaking NOVA did not ar-
ticulate an alternative regulation for extra-schedular rat-
ing that would provide workable criteria for evaluating the
synergistic effect of multiple disabilities on earning capac-
ity. NOVA’s petition thus presents us with a choice be-
tween an entirely ad hoc process of combining disability
ratings and a generally applicable legislative rule for com-
bining disability ratings, the effects of which are tempered
by the case-by-case determination of TDIU to allow for the
combined effects of multiple disabilities that result in total
disability.
As the Supreme Court has numerous times recognized,
agencies may conclude that rulemaking is superior to case-
by-case adjudication. See Mohawk Indus., Inc. v. Carpen-
ter, 558 U.S. 100, 113–14 (2009) (explaining that “the rule-
making process has important virtues” as compared to
adjudication); Allentown Mack Sales & Serv., Inc. v. Nat’l
Labor Relations Bd., 522 U.S. 359, 375 (1998) (noting that
rulemaking “promotes sound results”); Petroleum Refiners
Ass’n v. Fed. Trade Comm’n, 482 F.2d 672, 681–82 (D.C.
Cir. 1974) (“Increasingly, courts are recognizing that use of
rule-making to make innovations in agency policy may ac-
tually be fairer to regulated parties than total reliance on
case-by-case adjudication.”). In addition to increasing effi-
ciency and political accountability:
NOVA v. SECRETARY OF VETERANS AFFAIRS 13
Legislative rules provide affected parties with
clearer advance notice of permissible and imper-
missible conduct; they avoid the widely disparate
temporal impact of ‘rules’ announced and applied
through adjudicatory decisionmaking; they reduce
the incidence and magnitude of interdecisional in-
consistencies in implementing the regulatory and
benefit programs; and, they allow all potentially af-
fected members of the public an opportunity to par-
ticipate in the process of determining the rules that
affect them.
Kristin E. Hickman & Richard J. Pierce, Jr., Administra-
tive Law Treatise § 4.8, at 522 (6th ed. 2019). The decision
“between proceeding by general rule or by individual, ad
hoc litigation is one that lies primarily in the informed dis-
cretion of the administrative agency.” Securities & Ex-
change Comm’n v. Chenery Corp. (Chenery II), 332 U.S.
194, 203 (1947).
III
To the extent that NOVA contends that the change was
arbitrary because the VA rule fails to capture the full ex-
tent of the synergistic effects of multiple disabilities, we
note that NOVA has failed in its brief or opening argument
to provide a single example where this is the case. Nor did
our decision in Johnson identify such examples, noting only
that “[i]t is not difficult to imagine that, in many cases, the
collective impact of all of a veteran’s disabilities could be
greater than the sum of each individual disability’s im-
pact.” 762 F.3d at 1366. This does not suffice to overcome
what we otherwise find to be reasonable justifications for
the VA’s amendment of § 3.321(b)(1).
For the first time in its rebuttal oral argument, NOVA
attempted to identify a situation in which the VA’s regula-
tion would be inadequate to accomplish its stated purpose
of “accord[ing] justice to the exceptional case where
14 NOVA v. SECRETARY OF VETERANS AFFAIRS
schedular evaluation is inadequate.” 5 NOVA described the
case of “a veteran who is service-connected for post-trau-
matic stress disorder” but does not meet the criteria for
TDIU. Oral Argument at 30:54–31:01, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=20
18-1391.mp3. NOVA also described the veteran to have
tinnitus (i.e., ringing in the ears), which receives a rating
of 10%—a non-compensable rating. Oral Arg. at 31:05–10.
The tinnitus aggravates his PTSD: “The ringing in [his]
ears becomes a distraction at work, it becomes a frustra-
tion, it aggravates his symptoms of post-traumatic stress
disorder . . . [and] creates a situation in which the constant
ringing in the ears prevents him from answering the
phone, it prevents him from making calls, it prevents him
from being able to hear and interact with other people.”
Oral Arg. at 31:23–48. In other words, the veteran’s tinni-
tus can “go through the whole series of triggers for the
symptoms of [his] service-connected [PTSD].” Oral Arg.
31:52–32:00.
5 We are aware of at least one post-Johnson example,
in the form of a comment to the VA’s notice of proposed
rulemaking, that purportedly exemplifies a case in which
there exists “a particular harm that VA’s [amended] rule
would inflict upon veterans.” J.A. 36; see also 82 Fed. Reg.
at 57,833; Yancy v. McDonald, 27 Vet. App. 484 (2016). In
Yancy, the veteran had service-connected, bilateral foot
disabilities, knee disabilities, and hemorrhoids. Yancy, 27
Vet. App. at 496. Because the veteran could not “stand or
sit for long periods of time” as a result of this combination,
the Court of Appeals for Veterans Claims remanded the
case for consideration of whether the veteran was entitled
to a “referral for extraschedular consideration based on
[the veteran’s] service-connected disabilities on a collective
basis.” Id.
NOVA v. SECRETARY OF VETERANS AFFAIRS 15
NOVA contends that in such circumstances, looking to
the veteran’s individual disabilities in isolation—rather
than to the synergistic effect that tinnitus and PTSD to-
gether exhibit—would not have the intended effect of “do-
ing justice when the rating schedule is inadequate.” Oral
Arg. at 32:10–17. To accomplish this objective, NOVA ar-
gues that is it necessary to “look at the totality.” Oral Arg.
at 32:17–22.
Though there may be situations in which the rules may
not account for the unique facts of every single case, this
does not demonstrate that the rule is on its face arbitrary
and capricious or that case-by-case adjudication is required
in the absence of a showing that the rule fails to take ac-
count of a significant number of such situations. No such
showing has been made here. Agency regulations are often
by their very nature broad, bright-line rules that are
drafted in view of the ease and consistency with which they
can be administered and, in some respects, address the
problem imperfectly. See Edwards v. Dewalt, 681 F.3d 780,
785–87 (6th Cir. 2012) (upholding a bright-line rule); Fish-
erman’s Dock Co-op., Inc. v. Brown, 75 F.3d 164, 172–73
(4th Cir. 1996) (recognizing that “arbitrariness . . . is inher-
ent in the exercise of [an agency’s] discretion amid uncer-
tainty”); see also Lopez v. Davis, 531 U.S. 230, 243–44
(2001).
The VA reasonably concluded that determination of an
extra-schedular rating with respect to a single disability is
likely to result in a more logical and consistent system of
extra-schedular rating than one in which the deci-
sionmaker must determine on an ad hoc basis whether ex-
tra-schedular rating is appropriate for the synergistic
effect of a combination of disabilities. The VA could also
reasonably conclude that “[r]equiring adjudicators to con-
sider the adequacy of combined ratings . . . would likely
cause delays in the adjudication of claims . . . . [which]
would in some respects be detrimental to claimants and the
effective operation of VA’s claims-adjudication system.” 82
16 NOVA v. SECRETARY OF VETERANS AFFAIRS
Fed. Reg. at 57,831; see Monk v. Shulkin, 855 F.3d 1312,
1317–18 (Fed. Cir. 2017) (summarizing the extent of the
VA backlog as of 2017). Courts have consistently recog-
nized the propriety of considering such pragmatic issues,
like ease of administration and efficiency. See, e.g., World-
Com, Inc. v. F.C.C., 238 F.3d 449, 459 (D.C. Cir. 2001)
(F.C.C. was not arbitrary and capricious “to make ease of
administration and enforceability a consideration in set-
ting its standard for regulatory relief”).
IV
Finally, we note that in sustaining the rule on its face
we have no occasion to decide whether a veteran in an ex-
ceptional future case could succeed in demonstrating that
the application of the amended regulation to the veteran’s
particular circumstances was arbitrary because the VA’s
approach failed to capture the full extent of the veteran’s
disability and was in the circumstances unsustainable. See
EME Homer City Generation, L.P. v. E.P.A., 795 F.3d 118,
123–24 (D.C. Cir. 2015) (as-applied challenge still available
after facial challenge rejected); Lomont v. O’Neill, 285 F.3d
9, 17–18 (D.C. Cir. 2002) (sustaining regulations against
facial attack and declining to decide “whether, in a partic-
ular action, the regulations would be arbitrary and capri-
cious”); Buongiorno v. Sullivan, 912 F.2d 504, 510 (D.C.
Cir. 1990) (leaving open petitioner’s as-applied challenge to
a regulation even after concluding that the regulation was
not arbitrary and capricious on its face). Our holding here
should not be read to preclude an as-applied challenge that
application of the amended regulation in an exceptional
case yields a result so patently unfair as to make the rule’s
application arbitrary and capricious.
CONCLUSION
Because we do not find that the VA’s amendment to 38
C.F.R. § 3.321(b)(1) is on its face arbitrary, capricious, or
otherwise not in accordance with the law, we decline to find
the rule unlawful and deny NOVA’s petition.
NOVA v. SECRETARY OF VETERANS AFFAIRS 17
DENIED
COSTS
No costs.