**United States Court of Appeals for the Federal Circuit**

99-7078

EDWARD T. SPLANE and PARALYZED VETERANS OF AMERICA,

Petitioners,

v\.

Togo D. West, Jr., SECRETARY OF VETERANS AFFAIRS,

Respondent.

[Linda E. Blauhut]{.underline}, Paralyzed Veterans of America, of
Washington, DC, argued for petitioners. With her on the brief was
[Michael P. Horan]{.underline}.

[Elizabeth M. Hosford]{.underline}, Trial Attorney, Commercial
Litigation Branch, Civil Division, Department of Justice, of Washington,
DC, argued for respondent. On the brief were [David W.
Ogden]{.underline}, Acting Assistant Attorney General; [David M.
Cohen]{.underline}, Director; [Kathryn A. Bleecker]{.underline},
Assistant Director; and [Paul M. Faver]{.underline}, Attorney. Of
counsel on the brief were [Richard J. Hipolit]{.underline}, Acting
Assistant General Counsel; and [David J. Barrans]{.underline}, Staff
Attorney, Department of Veterans Affairs, Washington, DC.

Appealed from: Department of Veterans Affairs

**United States Court of Appeals for the Federal Circuit**

99-7078

EDWARD T. SPLANE

and PARALYZED VETERANS OF AMERICA,

Petitioner,

v\.

Togo D. West, Jr.,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: June 23, 2000

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MICHEL, CLEVENGER, and RADER, [Circuit Judges]{.underline}.

CLEVENGER, [Circuit Judge]{.underline}.

Petitioners, Edward T. Splane and the Paralyzed Veterans of America,
seek review of a precedential opinion issued by the Department of
Veterans Affairs ("DVA") general counsel on October 2, 1998 ("VAOPGCPREC
14-98"). In that opinion, the general counsel responded to a request
from the Chairman of the Board of Veterans' Appeals ("Board") for
guidance concerning three questions of law presented in an appeal filed
by Mr. Splane. Petitioners seek to have VAOPGCPREC 14-98 declared
invalid on the grounds that the opinion suffers from a number of
procedural and substantive defects. We disagree with Petitioners that
VAOPGCPREC 14-98 is procedurally defective under either the
Administrative Procedure Act ("APA") or the Freedom of Information Act
("FOIA"). However, because we agree that VAOPGCPREC 14-98 contains a
statutory interpretation that is not in accordance with law, we vacate
that portion of the opinion.

I

Splane, a veteran, appealed his claim for service connection for
multiple sclerosis ("MS") to the Board. As part of his substantive case,
Splane relied on 38 U.S.C. § 1112(a) (1994), which states that:

> in the case of any veteran who served for ninety days or more during a
> period of war . . . multiple sclerosis developing a 10 percent degree
> of disability or more within seven years from the date of separation
> from such service . . . shall be considered to have been incurred in
> or aggravated by such service, notwithstanding there is no record of
> evidence of such disease during the period of service.

Accordingly, Splane sought to show that he had developed an MS-related
disability of at least 10 percent within 7 years of being discharged
from the service.

On April 7, 1995, the Board denied Splane's claim, finding that Splane
had exhibited symptoms of MS in high school, before entry into service.
The Board concluded that, although MS was present to a compensable
degree within the 7-year presumptive period following discharge, Splane
was not entitled to the statutory presumption of incurrence or
aggravation because his condition predated his entry into the service
and was not aggravated thereby. Splane appealed the Board's decision to
the Court of Appeals for Veterans Claims ("CAVC").

On May 7, 1997, Splane and counsel for the DVA filed a joint motion for
remand for further evidentiary development and a supplemental opinion.
The joint motion for remand requested that the Board order a new
independent medical expert ("IME") opinion with regard to the severity
of Splane's MS during the 7-year presumptive period. The remand motion
also requested that the Board remove, temporarily, a previous Board
medical advisor's opinion ("BMAO") from Splane's record during the IME's
evaluation, or provide an explanation as to why Splane would not be
prejudiced by the IME's knowledge of the earlier BMAO. Finally, the
Board was requested to consider whether the presumption of aggravation,
provided under 38 U.S.C. § 1112(a)(4), is applicable where the facts
show that a veteran exhibited symptoms of MS before entering the
service. The joint remand motion was granted on May 8, 1997.

On remand, and before any arguments were heard, the Chairman of the
Board requested an opinion from DVA's general counsel on legal issues
involved in Splane's case. In response to the Board's request, the DVA
general counsel issued precedential opinion VAOPGCPREC 14-98, dated
October 2, 1998, a synopsis of which was published in the Federal
Register on October 22, 1998. [See]{.underline} 63 Fed. Reg. 56,705
(Oct. 22, 1998). The opinion concluded that 38 U.S.C. § 1112(a) does not
establish a presumption of aggravation for a chronic disease that
existed before entry into the service. It further concluded that a
document in a veteran's file could be temporarily removed for the
purpose of obtaining an "untainted" IME opinion. Finally, it concluded
that the requirement of 38 U.S.C. § 7109(c), that the Board "furnish the
claimant with a copy of \[an IME\] opinion when it is received by the
Board," is satisfied if a copy of the opinion is delivered to the
claimant's authorized representative.

On March 5, 1999, Splane's counsel requested in writing that the DVA
general counsel withdraw VAOPGCPREC 14-98, arguing that it was not
contemplated by the joint remand agreement. The general counsel denied
this request. Thereafter, Splane filed the present petition for review,
joined by the Paralyzed Veterans of America. In the meantime, Splane
petitioned the CAVC for a writ of mandamus to reinstate his appeal to
that court pending the outcome of the present challenge; however, that
petition was denied.

We have jurisdiction over this petition pursuant to 38 U.S.C. § 502
(1994), which states: "An action of the Secretary to which section
552(a)(1) or 553 of title 5 (or both) refers . . . is subject to
judicial review \[which\] may be sought only in the United States Court
of Appeals for the Federal Circuit." The action now being challenged is
the creation and publication of an agency rule---in the form of a
precedential general counsel opinion---which falls under the ambit of
sections 552(a)(1) and 553. Accordingly, our jurisdiction in this case
is proper.

II

Petitioners challenge the procedural correctness of the general
counsel's opinion, as well as its substance. Procedurally, Petitioners
argue that VAOPGCPREC 14-98 is a "legislative rule," subject to the
notice and comment rulemaking requirements of 5 U.S.C. § 553 (1994),
rather than an interpretative rule that is exempt from notice and
comment rulemaking procedures. Petitioners also argue that the DVA
failed to comply with 5 U.S.C. § 552(a)(1) by not publishing the entire
text of VAOPGCPREC 14-98 in the Federal Register.[^1] Finally,
Petitioners argue that the Board lacked statutory authority to request
an opinion of the DVA general counsel that was determinative in a
pending individual case. Substantively, Petitioners argue that
VAOPGCPREC 14-98 contradicts the statutes it purports to interpret,
particularly 38 U.S.C. §§ 1112(a)(4) and 7109.

A

Petitioners first argue that VAOPGCPREC 14-98 is procedurally defective
because it was not issued in accordance with APA notice and comment
rulemaking procedures. [See]{.underline} 5 U.S.C. § 553 (1994). This
argument is based on the assumption that VAOPGCPREC 14-98 is a
"legislative" rule rather than an "interpretive" rule. The distinction
is important because the APA exempts from notice and comment rulemaking
any "interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice." 5 U.S.C. § 553(b)(A)
(1994).

We have explained the distinction between substantive
([i.e.]{.underline}, legislative) rules and interpretive rules as
follows:

> "\[S\]ubstantive rules" \[are\] those that effect a change in existing
> law or policy or which affect individual rights and obligations.
> "Interpretive rules," on the other hand, clarify or explain existing
> law or regulation and are exempt from notice and comment under section
> 553(b)(A). . . . "\[A\]n interpretive statement simply indicates an
> agency's reading of a statute or a rule. It does not intend to create
> new rights or duties, but only reminds affected parties of existing
> duties."

[Paralyzed Veterans of America v. West]{.underline}, 138 F.3d 1434, 1436
(Fed. Cir. 1998) (quoting [Orengo Caraballo v. Reich]{.underline}, 11
F.3d 186, 195 (D.C. Cir. 1993)) (other citations omitted). With this
guidance in mind, we must decide whether VAOPGCPREC 14-98 is essentially
legislative or interpretive in nature. We conclude that the opinion is
essentially interpretive because it represents the agency's reading of
statutes and rules rather than an attempt to make new law or modify
existing law.

Each section of the opinion begins with the text of the relevant
statute, [e.g.]{.underline}, 38 U.S.C. § 1112(a), and the DVA's
corresponding regulation, [e.g.]{.underline}, 38 C.F.R. §§ 3.307(a),
(c). The opinion then proceeds to interpret the meaning of the statute
with respect to the specific question presented, invoking the
traditional rules of statutory interpretation, including textual and
contextual analysis and a study of the legislative history. Notably, the
opinion does not engage in the type of "policy analysis" one would
expect in the rulemaking context, such as weighing the pro's and con's
of one course of action versus another. Finally, the opinion makes
clear, throughout its text, that the agency is engaging in statutory
interpretation, rather than "gap filling" or an exercise of its
rulemaking power. [See]{.underline}, [e.g.]{.underline}, VAOPGCPREC
14-98 at 3 ("we conclude that the regulation represents a proper
[interpretation]{.underline} of section 1112(a)" (emphasis added)). The
D.C. Circuit has recognized that "an agency's characterization of its
own action, while not decisive, is a factor \[to\] consider . . . ."
[American Hosp. Ass'n v. Bowen]{.underline}, 834 F.2d 1037, 1047 (D.C.
Cir. 1987).

Petitioners argue, however, that VAOPGCPREC 14-98 must be deemed
legislative in nature because it was intended to have the "force and
effect of law." They point to 38 U.S.C. § 7104(c), which states that
"\[t\]he Board shall be bound in its decisions by the . . . precedent
opinions of the chief legal officer of the Department." According to
Petitioners, this is a critical factor in determining whether a rule is
legislative or interpretive, citing [Virginia Department of Education v.
Riley]{.underline}, 86 F.3d 1337, 1347 (4^th^ Cir.), [vacated en
banc]{.underline}, 106 F.3d 559 (4^th^ Cir. 1997) and [Chief Probation
Officers v. Shalala]{.underline}, 118 F.3d 1327, 1333 (9^th^ Cir. 1997).
Both [Riley]{.underline} and [Chief Probation Officers]{.underline} cite
[Shalala v. Guernsey Memorial Hospital]{.underline}, 514 U.S. 87 (1995),
for the proposition that interpretive rules do not have the force and
effect of law.

[Guernsey]{.underline} involved a challenge to the validity of a
Medicare reimbursement guideline, adopted without notice and comment
procedures. The Supreme Court held that the agency's rule was not
invalid for lack of notice and comment because it was "a prototypical
example of an interpretive rule issued by an agency to advise the public
of the agency's construction of the statutes and rules which it
administers." 514 U.S. at 99 (citing [Chrysler Corp. v.
Brown]{.underline}, 441 U.S. 281, 302, n. 31 (1979)) (internal
quotations omitted). As an aside, the Court noted that "\[i\]nterpretive
rules do not require notice and comment, although . . . they also do not
have the force and effect of law and are not accorded that weight in the
adjudicatory process." [Id.]{.underline}

According to Petitioners, because VAOPGCPREC 14-98 is binding on the
Board by statute, it necessarily has the "force and effect of law,"
which, under the corollary logic of [Guernsey]{.underline}, means that
it cannot be an interpretive rule. In other words, Petitioners assert
that any agency rule that is binding on an [agency tribunal]{.underline}
has the "force and effect of law," and must therefore be deemed
legislative in nature. We disagree.

The Supreme Court's statement in [Guernsey]{.underline} must be read in
context. In particular, we note that the interpretive rule at issue in
[Guernsey]{.underline} (affecting the agency's reimbursement of Medicare
costs to hospitals) was certainly binding on agency officials insofar as
any directive by an agency head must be followed by agency employees.
[See]{.underline} [Metropolitan Sch. Dist. v. Davila]{.underline}, 969
F.2d 485, 493 (7^th^ Cir. 1992) ("All rules which interpret the
underlying statute must be binding because they set forth what the
agency believes is congressional intent."). In [Chrysler]{.underline},
which was relied upon in [Guernsey]{.underline}, the Court faced the
task of interpreting a statute that contained a special exception for
activities "authorized by law." The question before the Court was
whether a certain agency regulation had the necessary "force and effect
of law" to trigger the statutory exception. The [Chrysler]{.underline}
court stated:

> It has been established in a variety of contexts that properly
> promulgated, substantive agency regulations have the "force and effect
> of law." This doctrine is so well established that agency regulations
> implementing federal statues have been held to preempt state law under
> the Supremacy Clause.

441 U.S. at 295-96.

It is clear from [Chrysler]{.underline} and [Guernsey]{.underline} that
the Court's reference to a regulation having the "force and effect of
law" is to the binding effect of that regulation on tribunals
[outside]{.underline} the agency, not on the agency itself.
[See]{.underline} [also]{.underline} [Animal Legal Defense Fund v.
Quigg]{.underline}, 932 F.2d 920, 929-30 (Fed. Cir. 1991) ("A limitation
of \[agency\] discretion, by itself, does not make an agency action
'substantive.'"). In the present case, because Petitioners do not
suggest that VAOPGCPREC 14-98 has any binding effect whatsoever outside
the agency, on the CAVC, or on this court, their reliance on
[Guernsey]{.underline} is misplaced.

We conclude that VAOPGCPREC 14-98 is an interpretive rule and therefore
not subject to the notice and comment procedures of the APA.

B

Petitioners next argue that, even if notice and comment procedures are
not required under the APA for the general counsel's opinion in
question, the DVA violated the FOIA publication requirements of 5 U.S.C.
§ 552(a)(1) (1994) by publishing only a synopsis, rather than the entire
text, of VAOPGCPREC 14-98 in the Federal Register. The FOIA requires
agencies to publish "substantive rules of general applicability adopted
as authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted by the
agency." 5 U.S.C. § 552(a)(1)(D) (1994). General counsel opinions are
specifically included in the latter category pursuant to 38 U.S.C. §
501(c), which states: "\[i\]n applying section 552(a)(1) of title 5 to
the Department, the Secretary shall ensure that subparagraphs (C), (D),
and (E) of that section are complied with, [particularly with respect to
opinions and interpretations of the General Counsel]{.underline}."
(emphasis added). [See]{.underline} [also]{.underline} 38 C.F.R. §
14.507(b) ("Written legal opinions \[of the General Counsel\] designated
as precedent opinions . . . shall be considered by Department of
Veterans Affairs to be subject to the provisions of 5 U.S.C.
552(a)(1).").

The government argues that section 552(a)(1)(D) does not require
publication of the legal analysis or basis for interpretive rules. It
contrasts section 552(a)(1)(D) with section 553, which sets forth the
notice and comment requirement for legislative rulemaking. Because
section 553 requires publication of "a concise general statement of . .
. basis and purpose," the government argues that the omission of such a
statement in section 552(a)(1)(D) indicates Congress' intent to treat
the publication of legislative rules differently than interpretive
rules. We need not reach this argument, however, because Petitioners
have failed to establish that they have been harmed by the failure to
publish the full text of VAOPGCPREC 14-98 in the Federal Register. We
therefore express no opinion regarding the merits of the government's
statutory interpretation argument.

Section 552(a) of title 5 states:

> Except to the extent that a person has actual and timely notice of the
> terms thereof, a person may not in any manner be required to resort
> to, or be adversely affected by, a matter required to be published in
> the Federal Register and not so published.

Petitioners assert that the DVA was required, pursuant to the FOIA, to
publish the full text of the legal analysis contained in VAOPGCPREC
14-98. However, Petitioners have failed to show that they were ever
"required to resort to" or "adversely affected by" this legal analysis
before receiving actual notice thereof. In the case of Mr. Splane, he
received actual notice of the legal analysis in VAOPGCPREC 14-98, via
his attorney, on January 27, 1999. As far as we are aware, there has not
yet been a final judgment in Splane's appeal to the Board, and,
therefore, the DVA's failure to publish its legal analysis in the
Federal Register has not harmed Splane. The Paralyzed Veterans of
America has likewise made no showing of harm. Accordingly, we conclude
that any failure of the DVA to meet the FOIA publication requirements
with respect to VAOPGCPREC 14-98, was harmless to Petitioners.
[See]{.underline} [New York v. Lyng]{.underline}, 829 F.2d 346, 354 (2d.
Cir. 1987) ("the requirement for publication \[of regulations\] attaches
only to matters which if not published would adversely affect a member
of the public" (quotations and citations ommitted)).
[Accord]{.underline} [United States v. Yuzary]{.underline}, 55 F.3d 47,
53 n. 10 (2d. Cir. 1995).

C

Petitioners broadly challenge the Board's statutory authority to request
opinions from the Agency's general counsel, at least where such opinions
will be determinative in individual cases. We have jurisdiction to
consider this argument, pursuant to 38 U.S.C. § 502, because an agency's
statutory authority to issue interpretive rules is implicit in sections
552(a)(1) and 553 of title 5, which, by reference, provide the basis of
our jurisdiction under 38 U.S.C. § 502. Unlike Petitioners' argument
that the Agency violated its own regulations by not notifying Splane
that a legal opinion was being sought in his case, Petitioners'
challenge to the DVA's statutory authority to issue interpretive rules
at the request of the Board is reviewable under 38 U.S.C. § 502 because
it directly challenges an agency action---the issuance of an
interpretive rule---that is referred to in sections 552(a)(1) and 553 of
title 5.

Petitioners first argue that, because the Board was established by
statute, [see]{.underline} 38 U.S.C. §§ 7101-7110, and because Congress
has not expressly authorized the Board to request opinions in individual
cases, the DVA cannot [delegate]{.underline} such authority to the
Board. Thus, Petitioners challenge 38 C.F.R. § 20.901(c), which
authorizes the Board to request general counsel opinions, as being
without statutory support. The government responds that, although
Congress has statutorily vested the Board with certain functions, that
in no way precludes the Secretary from delegating other authority to the
Board as authorized by 38 U.S.C. § 512(a) ("Delegation of authority;
assignment of functions and duties"). We agree with the government.

The Supreme Court has said that whether an agency head has the implicit
ability to delegate his powers to subordinates depends on whether
Congress has expressly granted the power to delegate. [See]{.underline}
[Cudahy Packing Co. v. Holland]{.underline}, 315 U.S. 357, 366 (1942)
(\"the subpoena power shall be delegable only when an authority to
delegate is expressly granted\"). In this case, 38 U.S.C. § 512(a) is
such a grant of authority. That section states:

> Except as otherwise provided by law, the Secretary may assign
> functions and duties, and delegate, or authorize successive
> redelegation of, authority to act and to render decisions, with
> respect to all laws administered by the Department, to such officers
> and employees as the Secretary may find necessary.

Since the Secretary may delegate "authority to act . . . with respect to
all laws administered by the Department," we see no problem with the
Secretary delegating to the Board the authority to request legal
opinions from the agency's general counsel. Since there is no law
[prohibiting]{.underline} the Board from doing this, and since section
512(a) says "except as otherwise provided by law," this delegation is
clearly acceptable under [Cudahy Packing]{.underline}.

Petitioners also argue that the Chairman's request for a legal opinion
violated Congress' express prohibition that the Chairman of the Board
not participate in individual appeals, except as a member of a panel.
[See]{.underline} 38 U.S.C. § 7102(b) (Supp. 2000).[^2] The government
responds that, as the head of the Board, the Chairman's signed request
for an opinion is merely [pro]{.underline} [forma]{.underline}, and does
not necessarily indicate that the Chairman has substantively
participated in the appeal. We agree. As there is no evidence in this
case that the Chairman substantively participated in Splane's appeal, we
perceive no violation of section 7102(b).

Finally, Petitioners argue that the Board's practice of requesting
binding opinions in individual cases essentially allows the DVA to issue
binding rules through adjudication, [i.e.]{.underline}, without
following proper APA procedures. Petitioners suggest that, in a case
where the application of existing law is uncertain, the Board should
either give the veteran the benefit of the doubt, or rule against the
veteran and let the veteran appeal the issue to the CAVC and the Federal
Circuit.

We fail to see how Petitioners have been harmed by the issuance of a
general counsel opinion in this case. Since VAOPGCPREC 14-98 is not
binding on the CAVC, Splane will be in no worse condition if he is
adversely affected by the opinion than he would be if the Board simply
ruled against him without the benefit of a general counsel opinion. In
both instances, he can appeal to the CAVC and have his case considered
on the merits. The CAVC is charged with setting aside "rules\[\] and
regulations issued or adopted by the Secretary . . . found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 38 U.S.C. § 7261(3) (1994). Petitioners have
failed to explain how this standard of review would differ because of
the existence of a precedential general counsel opinion. Accordingly, we
are not persuaded that the Board's request for an opinion in this case
was harmful to Petitioners.

III

Petitioners argue that the first and third conclusions stated in
VAOPGCPREC 14-98 are inconsistent with the statutes they interpret.
Neither Petitioners nor the government raise any question about the
second conclusion, which opined that a veteran's medical record could be
temporarily removed from the veteran's file while he obtained a new IME
opinion. We, of course, express no view on the second conclusion.

We have authority, under 5 U.S.C. § 502, to "directly review rules
promulgated by \[DVA\], including substantive rules of general
applicability, statements of general policy and interpretations of
general applicability." [LeFevre v. Secretary of Veterans
Affairs]{.underline}, 66 F.3d 1191, 1196 (Fed. Cir. 1995). Section 502
invokes the APA standard of review, pursuant to which we must determine
if the Secretary\'s position is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A).

A

The first conclusion in the DVA general counsel's opinion is an
interpretation of 38 U.S.C. § 1112(a). That statute states in pertinent
part:

> For the purposes of section 1110 of this title, and subject to the
> provisions of section 1113 of this title, in the case of any veteran
> who served for ninety days or more during a period of war --
>
> . . . .
>
> multiple sclerosis developing a 10 percent degree of disability or
> more within seven years from the date of separation from such service
> . . . shall be considered to have been incurred in [or aggravated
> by]{.underline} such service, notwithstanding there is no record of
> evidence of such disease during the period of service.

(Emphasis added.).

We note from the outset that the words "or aggravated by" seem to
indicate---purely as a matter of logic---that Congress meant section
1112(a) to apply to those situations where MS predated entry into the
service and became aggravated during service. Nevertheless, the DVA
general counsel's opinion interprets section 1112(a) differently than
the plain meaning of the statute suggests. The opinion acknowledges
that, when "\[v\]iewed in isolation, the phrase 'incurred in or
aggravated by' may suggest that Congress intended to create a
presumption of aggravation for chronic diseases existing prior to
service." VAOPGCPREC 14-98 at 3. However, the opinion goes on to
conclude that "Congress did not intend to establish, in section 1112(a),
a presumption of aggravation for diseases existing prior to service."
[Id.]{.underline}

In support of this conclusion, the opinion traces the history of the
Agency's presumption of service connection for chronic diseases,
stretching back some 80 years. Citing legislative history from the Act
of August 9, 1921, ch. 57, § 18, 42 Stat. 147, 153-54, which amended the
War Risk Insurance Act, the opinion suggests that, by instituting the
presumption of service connection for certain chronic diseases, Congress
intended only to account for such diseases that developed
[during]{.underline} service or subsequent to service. However, because
there was an unrebuttable presumption, prior to 1933, that any disease
not recorded on a veteran's entrance physical was incurred after the
veteran's entry into the service, Congress included an "aggravation"
clause to theoretically account for "diseases which may have existed
prior to service but which, under the conclusive presumption of
soundness \[that existed at that time\], were required to be service
connected on the same basis as diseases which were incurred in service
or initially manifest within the presumptive period." VAOPGCPREC 14-98
at 8.

The opinion points out that the presumption of soundness---which was
unrebuttable in 1921---became [rebuttable]{.underline} with the adoption
of Veterans Regulation No. 1, Exec. Order No. 6089, on March 31, 1933.
According to the opinion, this rendered obsolete the "aggravation"
clause in statutes dealing with the presumption of service connection
for chronic diseases. As the opinion states:

> By eliminating the formerly conclusive presumption of soundness, that
> provision arguably rendered obsolete the provisions referring to
> aggravation of preexisting diseases in relation to the presumption of
> service connection for chronic diseases. The fact that Veterans
> Regulation No. 1 and subsequent laws continued to use the phrase
> "incurred in or aggravated by service" appears to reflect the usage
> which had by then become well established in the prior statutes and
> does not appear to reflect any intent to expand the law to establish a
> presumption of in-service aggravation for preexisting diseases which
> are not subject to the presumption of soundness, or as to which the
> presumption has been rebutted.

VAOPGCPREC 14-98 at 10. Thus, the position of the DVA general counsel is
that the phrase "or aggravated by"---as it exists today in section
1112(a)---is merely a vestige of an earlier provision that was long ago
rendered obsolete. The fact that the phrase has continuously been
carried on the books since 1933 is accounted for in the opinion as
something akin to a scrivener's error. We cannot agree with this
interpretation.

Where the intent of Congress on a particular question is clear, the
courts and the agency \"must give effect to the unambiguously expressed
intent of Congress.\" [Chevron U.S.A., Inc. v. Natural Resources Defense
Council]{.underline}, 467 U.S. 837, 842-43 (1984). To determine
Congress' intent, we employ the traditional tools of statutory
construction. [See]{.underline} [id.]{.underline} at 843 n.9. Thus, we
begin with the text of the statute itself. [See]{.underline} [United
States v. Gonzales]{.underline}, 520 U.S. 1, 4 (1997) ("Our analysis
begins, as always, with the statutory text."). We must construe a
statute, if at all possible, to give effect and meaning to all its
terms. [See]{.underline} [Lowe v. Securities & Exch.
Comm'n]{.underline}, 472 U.S. 181, 207-08 n.53 (1985); [Inhabitants of
Montclair v. Ramsdell]{.underline}, 107 U.S. 147, 152 (1883) (\"It is
the duty of the court to give effect, if possible, to every clause and
word of a statute. . . .\").

As mentioned above, the most logical reading of section 1112(a)
indicates that Congress intended to include preexisting conditions in
the presumption of in-service occurrence. Indeed, it is difficult to
imagine an interpretation of section 1112(a) that would suggest
otherwise without completely reading the words "or aggravated by" out of
the statute. The legislative history cited in the general counsel's
opinion, while not altogether unpersuasive, cannot overcome the canons
of construction that require us to give effect to the clear language of
a statute and avoid rendering any portions meaningless or superfluous.

However, the government argues that the words "or aggravated by" must be
read in context with the remainder of section 1112(a). Specifically, it
points to paragraph (2) of section 1112(a), which states that the
presumption of service connection for [tropical diseases]{.underline}
arises when such diseases become manifest to a compensable degree
"within one year from the date of separation from such service, [or at a
time when standard or accepted treatises indicate that the incubation
period thereof commenced during such service]{.underline}." (Emphasis
added). Based on this, the government argues that the presumption period
for MS, like that for tropical diseases, was based on a presumed
"incubation period" for the disease. Because paragraph (2) refers to an
incubation period for tropical diseases that places the incurrence of
the disease [during]{.underline} service, the government asserts that
the same assumption must apply for MS. Thus, according to the
government, Congress intended only to cover the possibility that MS
could be incurred [in service]{.underline} but not manifest until
several years after service. This argument is flawed.

First, we note that paragraph (2), which relates to tropical diseases,
is not [in]{.underline} [pari]{.underline} [materia]{.underline} with
paragraph (4), which deals with MS. The language of these two paragraphs
does not track. They deal with different diseases, and there is no
indication in section 1112(a) that they were intended to be read
together. [Cf.]{.underline} [Imazio Nursery, Inc. v. Dania
Greenhouses]{.underline}, 69 F.3d 1560, 1564 (Fed. Cir. 1995) (all the
parts of an act [relating to the same subject]{.underline} should be
considered together, and not each by itself). Second, it is unreasonable
to assume that Congress did not anticipate the possibility that a
veteran, who had nonsymptomatic MS before service, might be exposed to
such aggravating conditions during service that he would become disabled
to a compensable degree after service. Indeed the plain language of
section 1112 indicates that Congress was aware of this very possibility,
and sought to give veterans the "benefit of the doubt" when it occurred.

Because neither the general counsel's opinion, nor the government's
brief, provides a sufficiently compelling reason to read the words "or
aggravated by" out of section 1112(a), we conclude that VAOPGCPREC 14-98
interprets the statute in a manner that is not in accordance with law.

B

The other point challenged by Petitioners is the general counsel's
conclusion that, by sending a copy of an IME opinion to a claimant's
representative, the Agency complies with 38 U.S.C. § 7109(c), which
provides that:

> \[t\]he Board shall furnish a claimant with notice that an advisory
> opinion has been requested under this section with respect to the
> claimant's case and shall furnish the claimant with a copy of such
> opinion when it is received by the Board.

The regulation implementing section 7109(c) states:

> When an opinion is requested by the Board . . . the Board will notify
> the appellant and his or her representative, if any. When the opinion
> is received by the Board, a copy of the opinion will be furnished to
> the appellant's representative or . . . to the appellant if there is
> no representative.

38 C.F.R. § 20.1001 (1999).

Thus, Petitioners argue that the DVA's regulation is inconsistent with
its authorizing statute because the regulation allows the Board to
furnish an IME opinion to a claimant's attorney, rather than to the
claimant himself. We disagree with this assertion.

In [Irwin v. Department of Veterans Affairs]{.underline}, the Supreme
Court considered a similar argument and reached the following
conclusion:

> Under our system of representative litigation, each party is deemed
> bound by the acts of his lawyer-agent and is considered to have notice
> of all facts, notice of which can be charged upon the attorney. . . .
> To read the term "receipt" to mean only "actual receipt by the
> claimant" would render the practice of notification through counsel a
> meaningless exercise.

498 U.S. 89, 92 (1990) (quotations and citations omitted). The same
reasoning applies here. Accordingly, we conclude that the DVA's
regulation, 38 C.F.R. § 20.1001, is not inconsistent with 38 U.S.C. §
7109(c).

CONCLUSION

There are no procedural infirmities under the APA with respect to
VAOPGCPREC 14-98. The opinion is clearly in the nature of an
interpretive rule and is therefore exempt from APA notice and comment
rulemaking procedures. Under the FOIA, publication of an "abstract" of
the opinion, rather than the full text, was harmless to Petitioners,
since there was no showing that they were required to resort to, or were
adversely affected by, the underlying legal analysis of the opinion
before receiving actual notice thereof.

Substantively, we conclude that the general counsel's interpretation of
38 U.S.C. § 1112(a), as articulated in VAOPGCPREC 14-98, is not in
accordance with law and is therefore in excess of statutory authority,
[see]{.underline} 5 U.S.C. §§ 706(2)(A), (C). For this reason, we must
vacate that portion of VAOPGCPREC 14-98 which provides interpretation
and guidance to the Board regarding 38 U.S.C. § 1112(a). As no other
remedy is warranted at this time, [see]{.underline} [Chlorine Chemistry
Council v. Environmental Protection Agency]{.underline}, 206 F.3d 1286,
1291 (D.C. Cir. 2000), a partial vacatur is all that is ordered.

COSTS

No costs.

[VACATE-IN-PART]{.underline}

[^1]: Petitioners also argue that the Agency violated its own regulation
    regarding notification of parties when an opinion is being sought.
    We cannot reach this issue, however, because it falls outside our
    jurisdiction under 38 U.S.C. § 502. Specifically, the Agency's
    alleged failure to personally notify Splane or his attorney of the
    requested opinion is not "\[a\]n action of the Secretary to which
    section 552(a)(1) or 553 of title 5 (or both)" refers. Instead, the
    alleged violation concerns 38 C.F.R. §§ 20.901, 20.903, which do not
    warrant "direct review" under § 502.

[^2]: 38 U.S.C. § 7102(b) (Supp. 2000) ("A proceeding may not be
    assigned to the Chairman as an individual member. The Chairman may
    participate in a proceeding assigned to a panel or in a
    reconsideration assigned to a panel of members.").