United States Court of Appeals 

for the Federal Circuit ______________________ 

DISABLED AMERICAN VETERANS,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

______________________ 

2016-1493

______________________ 

Petition for review pursuant to 38 U.S.C. Section 502.

______________________ 

Decided: June 14, 2017 

______________________ 

ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, 

Providence, RI, argued for petitioner. Also represented by 

ROBERT VINCENT CHISHOLM, JENNA ZELLMER; 

CHRISTOPHER J. CLAY, Disabled American Veterans, Cold 

Spring, KY; BARBARA J. COOK, Cincinnati, OH.

EMMA BOND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN 

F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC.

______________________ 
2 DAV v. SECRETARY OF VETERANS AFFAIRS

Before MOORE, O’MALLEY, and REYNA, Circuit Judges.

MOORE, Circuit Judge.

Disabled American Veterans (“DAV”) petitions for 

review of provisions of the Department of Veterans Affairs’ (“VA”) Adjudication Procedures Manual M21-1 

(“M21-1 Manual”). We dismiss for lack of jurisdiction.

BACKGROUND

38 U.S.C. § 1117 provides presumptive service connection for veterans who served in the Persian Gulf War with 

a qualifying chronic disability. The statute articulates

three types of qualifying chronic disabilities: (a) an undiagnosed illness; (b) a medically unexplained chronic 

multisymptom illness (“MUCMI”); and (c) any diagnosed 

illness as determined by the Secretary. 38 U.S.C. 

§ 1117(a)(2). The VA’s regulations define a MUCMI as:

a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such 

as fatigue, pain, disability out of proportion to 

physical findings, and inconsistent demonstration 

of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and 

pathophysiology, such as diabetes and multiple 

sclerosis, will not be considered medically unexplained.

38 C.F.R. § 3.317(a)(2)(ii) (emphasis added). Both statute 

and regulation identify sleep disturbances and signs or 

symptoms involving the respiratory system as possible 

manifestations of a MUCMI. 38 U.S.C. § 1117(g)(8)–(9);

38 C.F.R. § 3.317(b)(8)–(9).

The VA consolidates its policy and procedures into one 

resource known as the M21-1 Manual. The M21-1 Manual provides guidance to Veterans Benefits Administration 
DAV v. SECRETARY OF VETERANS AFFAIRS 3

(“VBA”) employees and stakeholders “to allow [the] VBA 

to process claims benefits quicker and with higher accuracy.” J.A. 81. Any VBA employee can request changes to 

the M21-1 Manual through submission of an online form.

The M21-1 Manual discusses service connection for 

qualifying disabilities under 38 U.S.C. § 1117 and 38 

C.F.R. § 3.317 in section IV.ii.2.D. In September 2015, a 

VBA employee requested a change to this portion of the 

M21-1 Manual to specify that the language “without 

conclusive pathophysiology or etiology” in § 3.317 requires 

“there is ‘both’ an inconclusive pathophysiology ‘and’ an 

inconclusive etiology” for an illness to qualify as a 

MUCMI. J.A. 78. He also requested the M21-1 Manual 

specify that sleep apnea is not a qualifying chronic disability under § 1117 and § 3.317. 

On November 30, 2015, the VA adopted the requested 

revisions. The VA changed the definition of MUCMI from

illnesses exhibiting “no conclusive physiology or etiology” 

to require “both an inconclusive pathology, and an inconclusive etiology.” J.A. 60, 100–01. Under the subsection 

“Signs and Symptoms of Undiagnosed Illnesses or 

MUCMIs,” the VA added, “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 

38 C.F.R. § 3.317 since it is a diagnosable condition.” 

J.A. 103. DAV petitions for review of these revisions 

pursuant to 38 U.S.C. § 502.

DISCUSSION

Our jurisdiction to review VA actions pursuant to 

§ 502 is limited. We can review actions of the Secretary 

subject to 5 U.S.C. §§ 552(a)(1) and 553. 38 U.S.C. § 502. 

Under § 502, we cannot review all VA actions which fall 

under § 552; only those in § 552(a)(1). Section 552(a)(1) 

refers to agency actions that must be published in the 

Federal Register, including “substantive rules of general 

applicability . . . and statements of general policy or 

interpretations of general applicability.” 5 U.S.C. 
4 DAV v. SECRETARY OF VETERANS AFFAIRS

§ 552(a)(1)(D). Section 553 refers to agency rulemaking

that must comply with notice-and-comment procedures

under the Administrative Procedure Act. “A party seeking the exercise of jurisdiction in its favor has the burden 

of establishing that such jurisdiction exists.” Rocovich v. 

United States, 933 F.2d 991, 993 (Fed. Cir. 1991); see also 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 

377 (1994). 

Section 552(a)(2) refers to agency actions that need 

not be published in the Federal Register. These agency 

actions must only be made publicly available in an electronic format. 5 U.S.C. § 552(a)(2). Section 552(a)(2)(C) 

defines “administrative staff manuals and instructions to 

staff that affect a member of the public” as agency actions 

falling under this category. The M21-1 Manual is an 

administrative staff manual that affects a member of the 

public. The M21-1 Manual is “an electronic resource that 

has consolidated all of VA’s policy and procedural guidance on processing disability claims into one location.” 

J.A. 81. It is intended for “VBA employees processing 

Veteran and Survivor claims for compensation, pension 

and burial benefits.” Id. The manual is intended to 

instruct VBA employees when processing claims, and its 

provisions affect the public. Section 502’s express exclusion of agency actions subject to § 552(a)(2) renders the 

M21-1 Manual beyond our § 502 jurisdiction unless DAV 

can show the VA’s revisions more readily fall under 

§§ 552(a)(1) or 553. Because DAV has not shown that the 

VA’s revisions to the M21-1 Manual are actions of the 

Secretary subject to either §§ 552(a)(1) or 553, we lack 

jurisdiction to review the M21-1 Manual revisions.

DAV cites precedent in which we found agency actions 

subject to § 552(a)(1) and thus reviewable pursuant to 

§ 502, but those cases are distinguishable from the VA’s 

M21-1 Manual revisions. For example, in Splane v. West, 

216 F.3d 1058 (Fed. Cir. 2000), we reviewed a precedential General Counsel opinion pursuant to § 502. See also 
DAV v. SECRETARY OF VETERANS AFFAIRS 5

Snyder v. Sec’y of Veterans Affairs, No. 16-1529 (Fed. Cir. 

June 8, 2017). Precedential General Counsel opinions are 

published in the Federal Register and are expressly 

subject to § 552(a)(1). See Splane, 216 F.3d at 1062; 38 

U.S.C. § 501(c) (specifying that opinions and interpretations of the VA General Counsel must comply with 

§ 552(a)(1)); 38 C.F.R. § 14.507(b) (“Written legal opinions 

designated as precedent opinions [of the General Counsel] 

under this section shall be considered by the Department 

of Veterans Affairs to be subject to the provisions of 5 

U.S.C. § 552(a)(1).”). In LeFevre v. Secretary of Veterans 

Affairs, 66 F.3d 1191 (Fed. Cir. 1995), we found that we 

had jurisdiction under § 502 to review the VA’s decision 

“not to create a presumption that prostate cancer, liver 

cancer, and nose cancer are connected to exposure to 

herbicides in Vietnam.” Id. at 1192–93. Congress directed the Secretary to work with the National Academy 

of Science to review and summarize scientific evidence 

concerning exposure to herbicide in Vietnam. Id. Congress delegated to the Secretary the authority to determine whether to create a presumption of service 

connection for diseases that may have resulted from such 

exposure, and the Secretary published a detailed explanation of his decision in the Federal Register. Id. at 1196–

97. We concluded that we had jurisdiction to review the 

Secretary’s determination because it was a “statement of 

general . . . applicability and future effect designed to 

implement . . . or prescribe . . . law or policy” as provided 

in § 552(a)(1). Id. And we have exercised our jurisdiction 

pursuant to § 502 in numerous other cases to review the 

VA’s final regulations published in the Federal Register. 

See, e.g., McKinney v. McDonald, 796 F.3d 1377 (Fed. Cir. 

2015); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of 

Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012). 

DAV also fails to draw similarities between the VA’s 

M21-1 Manual revisions and certain VA letters that we 

held constituted actions of the Secretary reviewable 
6 DAV v. SECRETARY OF VETERANS AFFAIRS

pursuant to § 502. See Military Order of the Purple Heart 

of the USA v. Sec’y of Veterans Affairs, 580 F.3d 1293, 

1294, 1296 (Fed. Cir. 2009) (holding a Fast Letter issued 

by a VA Director announced a “new procedure promulgated by the Secretary” subject to our review pursuant to 

§ 502); Coal. for Common Sense in Gov’t Procurement v. 

Sec’y of Veterans Affairs, 464 F.3d 1306, 1317–18 (Fed. 

Cir. 2006) (holding Dear Manufacturer Letter issued by 

an Acting VA Director announced a substantive rule that 

was “[a]n action of the Secretary” under § 502). The M21-

1 Manual revisions are distinguishable from these VA 

letters. Fast Letters and Dear Manufacturer Letters are 

not agency actions defined under § 552. While Congress 

explicitly designated administrative staff manuals as 

agency actions falling under § 552(a)(2), it did not similarly specify whether VA letters are agency actions subject to 

§ 552(a)(1) or § 552(a)(2). 

DAV argues we nonetheless have jurisdiction to review the VA’s revisions to the M21-1 Manual because the 

revisions announce substantive rules subject to § 553

which should be voided for failure to provide the required 

notice and comment. “[S]ubstantive rules [are] those that 

effect a change in existing law or policy or which affect 

individual rights and obligations.” Paralyzed Veterans of 

Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998). DAV 

argues the M21-1 Manual revisions are substantive rules 

subject to § 553 because the revisions are inconsistent 

with 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 and thus 

announce a change in existing law. DAV Br. 13–17 

(arguing § 1117 and § 3.317 entitle a veteran to presumptive service connection as long as the illness exhibits no 

conclusive pathophysiology or no conclusive etiology). It 

argues the Veterans Court has explained that “VA handbooks, circulars, and manuals” may have the “force and 

effect of law” if they prescribe substantive rules. DAV 

Br. 11–13 (quoting Castellano v. Shinseki, 25 Vet. App. 

146, 150 (2011)); see also Guerra v. Shinseki, 642 F.3d 
DAV v. SECRETARY OF VETERANS AFFAIRS 7

1046, 1051 n.2 (Fed. Cir. 2011) (“The Veterans Court has 

in the past found that certain provisions of the [M21-1] 

Manual constituted substantive rules for purposes of the 

APA.”); Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) 

(holding a provision in the M21-1 Manual “affected a 

substantive right and its placement in a procedural 

manual cannot disguise its true nature as a substantive 

rule”). 

“[T]he question whether a particular provision is substantive or interpretative for purposes of the APA is not 

resolved simply by the title of the document in which the 

provision is found.” Guerra, 642 F.3d at 1051 n.2. There 

are three relevant factors to whether an agency action 

constitutes substantive rulemaking under the APA: 

(1) the [a]gency’s own characterization of the action; (2) whether the action was published in the 

Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency. The first 

two criteria serve to illuminate the third, for the 

ultimate focus of the inquiry is whether the agency action partakes of the fundamental characteristic of a regulation, i.e., that it has the force of law.

Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999); 

see also Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 252 

(D.C. Cir. 2014) (“The most important factor [in distinguishing substantive rules from general statements of 

policy] concerns the actual legal effect (or lack thereof) of 

the agency action in question on regulated entities.”); 

Guerra, 642 F.3d at 1051 n.2 (“If an agency announces 

new substantive rules, those rules are subject to the 

procedural requirements of 5 U.S.C. § 553 even if they are 

not formally published as agency regulations.”). To 

amount to substantive rulemaking with the force and 

effect of law, the rule’s change in existing law must be 

“binding not only within the agency, but [] binding on 
8 DAV v. SECRETARY OF VETERANS AFFAIRS

tribunals outside the agency.” Coal. for Common Sense,

464 F.3d at 1318. 

The M21-1 Manual revisions do not amount to a § 553 

rulemaking and do not carry the force of law. All relevant 

factors point to this conclusion. The VA does not intend 

for the M21-1 Manual to carry the force of law: “The M21-

1 is an internal manual used to convey guidance to VA 

adjudicators. It is not intended to establish substantive 

rules beyond those contained in statute and regulation.” 

72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007). There is no 

notice-and-comment rulemaking for Manual revisions as 

required by § 553. The VA does not publish M21-1 Manual revisions in the Federal Register or Code of Federal 

Regulations, but instead issues revisions through an 

informal electronic process which can be initiated by VBA 

employees. The M21-1 Manual is binding on neither the 

agency nor tribunals. The Board of Veterans’ Appeals 

(“Board”) is bound only by “regulations of the Department, instructions of the Secretary, and the precedent 

opinions of the chief legal officer of the Department.” 38 

U.S.C. § 7104(c). The M21-1 Manual falls under none of 

these categories. The VA’s regulations specify, “[t]he 

Board is not bound by Department manuals, circulars, or 

similar administrative issues.” 38 C.F.R. § 19.5. These

rules announced in the M21-1 Manual revisions lack the 

legal effect to constitute substantive rulemaking under 

§ 553 and thus there was no procedural infirmity in the 

agency’s failure to provide notice and comment before 

making revisions to the M21-1 Manual. 

DAV has the burden of establishing this court’s jurisdiction over its petition. Congress chose to limit this 

court’s jurisdiction in § 502 to challenges to agency actions that fall under § 552(a)(1) or § 553. Congress expressly exempted from § 502 challenges to agency actions 

which fall under § 552(a)(2). DAV has not met its jurisdictional burden in this case. The Manual revisions are 

not, as DAV argues, substantive rules which require 
DAV v. SECRETARY OF VETERANS AFFAIRS 9

notice and comment rulemaking procedure. DAV argues 

we have jurisdiction to review the M21-1 Manual revisions even if they are interpretative rules, but fails to 

articulate why the revisions amount to “statements of 

general policy or interpretations of general applicability” 

subject to § 552(a)(1)(D) as compared to the interpretative 

rules subject to § 552(a)(2)(B)–(C). See Cathedral Candle 

Co. v. ITC, 400 F.3d 1352, 1369 (Fed. Cir. 2005) (“The 

statute makes clear that section 552(a)(1)(D) does not 

require the publication of all statements of policy and 

interpretation, because another provision of the same 

statute, section 552(a)(2)(B), states that each agency shall 

‘make available for public inspection and copying . . . those statements of policy and interpretations 

which have been adopted by the agency and are not 

published in the Federal Register.’”). As the government 

persuasively argues, § 552(a)(2) expressly includes 

“statements of policy and interpretations which have been 

adopted by the agency and are not published in the Federal Register” and further includes “administrative staff 

manuals and instructions to staff that affect a member of 

the public.” The VA Manual revisions at issue clearly fall 

under these § 552(a)(2) provisions. Where, as here, manual provisions are interpretations adopted by the agency, 

not published in the Federal Register, not binding on the 

Board itself, and contained within an administrative staff 

manual, they fall within § 552(a)(2)—not § 552(a)(1). 

DAV has the burden of establishing jurisdiction and has 

not established that the Manual revisions fall within 

§ 552(a)(1) or § 553.

This is not to say that a veteran is without recourse if 

the VA’s M21-1 Manual adopts a rule inconsistent with 

statute or regulation. A veteran adversely affected by a 

M21-1 Manual provision can contest the validity of that 

provision as applied to the facts of his case under 38 

U.S.C. § 7292. See, e.g., Guerra, 642 F.3d 1046. But 

absent a showing that the rule is an action of the Secre-
10 DAV v. SECRETARY OF VETERANS AFFAIRS

tary to which § 552(a)(1) or § 553 refers, DAV cannot 

directly request review of that provision pursuant to 38 

U.S.C. § 502. 

CONCLUSION

For the reasons discussed above, we dismiss for lack 

of jurisdiction.

DISMISSED

COSTS

No costs.