United States Court of Appeals for the Federal Circuit 

 Corrected: August 3, 2005

04-7117, -7128 

DISABLED AMERICAN VETERANS, 

 Petitioner, 

and 

THE AMERICAN LEGION and 

THE NATIONAL VETERANS LEGAL SERVICES PROGRAM, 

Petitioners, 

v. 

SECRETARY OF VETERANS AFFAIRS, 

Respondent. 

Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for 

petitioner Disabled American Veterans. With him on the brief was Donald E. Purcell. 

Ana Holmes, Steptoe & Johnson LLP, of Washington, DC, argued for petitioners 

The American Legion and The National Veterans Legal Services Program. On the brief 

was Jeffrey E. McFadden. Of counsel on the brief was Barton F. Stichman, National 

Veterans Legal Services Program, of Washington, DC. 

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General 

and David M. Cohen, Director. Of counsel were Mark A. Melnick, Assistant Director, 

and Cristina C. Ashworth, Attorney. Of counsel on the brief were Michael J. Timinski, 

Deputy Assistant General Counsel, and Martin J. Sendek, Staff Attorney, United States 

Department of Veterans Affairs, of Washington, DC. 

Appealed from: United States Department of Veterans Affairs 
 

United States Court of Appeals for the Federal Circuit 

04-7117, -7128 

DISABLED AMERICAN VETERANS, 

 Petitioner, 

and 

THE AMERICAN LEGION and THE NATIONAL 

VETERANS LEGAL SERVICES PROGRAM 

 Petitioners, 

v. 

SECRETARY OF VETERANS AFFAIRS, 

 Respondent. 

 ___________________________ 

DECIDED: August 3, 2005 

 ___________________________ 

Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges. 

Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit 

Judge MAYER. 

DYK, Circuit Judge. 

 Disabled American Veterans, the American Legion, and the National Veterans 

Legal Services Program (collectively “petitioners”) petition for review of a regulation 

promulgated by the Secretary of Veterans Affairs, 38 C.F.R. § 20.901(a). We hold that 

the regulation is valid and accordingly deny the petition for review. 
BACKGROUND 

This case involves a regulation that authorizes the Board of Veterans Appeals 

(hereinafter “Board”) to secure medical opinions from health care professionals within 

the Department of Veterans Affairs (“VA”). Some background on the administration of 

veterans benefits is helpful to understanding the operation of this regulation. 

Among the most important of benefit programs administered by the VA is the 

disability compensation program, which provides compensation to veterans who suffer a 

“disability resulting from personal injury suffered or disease contracted in line of duty.” 

38 U.S.C. § 1110 (2000). A veteran claiming benefits submits an application to the VA, 

and an initial decision on benefits is rendered by the Secretary of Veterans Affairs 

(“Secretary”) under 38 U.S.C. § 511(a). As a practical matter the initial decision is 

usually made by the Secretary’s delegate at the regional office under the authority of 38 

C.F.R. § 3.100. The entity that renders the initial decision is known as the “agency of 

original jurisdiction,” 38 C.F.R. § 20.3(a) (2004), but for convenience we will refer to it as 

the regional office. 

Generally, a veteran who claims entitlement to disability compensation benefits 

must show (1) a current disability; (2) an in-service precipitating disease, injury or event; 

and (3) nexus between the current disability and the in-service events. See Epps v. 

Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); see also Shedden v. Principi, 381 F.3d 

1163, 1167 (Fed. Cir. 2004) (presumption that an injury incurred during active duty is 

service-connected). Medical evidence and medical opinion is important to the questions 

of whether there is a disability and whether that disability is service-connected. 

04-7117, -7128 2 
Recognizing the importance of such medical evidence and opinion, Congress 

specifically vested the VA with a duty to provide a medical examination and to obtain a 

medical opinion “when such an examination or opinion is necessary to make a decision 

on the claim.” 38 U.S.C. § 5103A(d) (2000). The statute deems medical evidence and 

opinion to be necessary when the record “contains competent evidence that the 

claimant has a current disability . . . , indicates that the disability or symptoms may be 

associated with the claimant's active . . . service” and “does not contain sufficient 

medical evidence for the Secretary to make a decision on the claim.” Id. Thus, when 

necessary to the making of an initial determination on a claim, the VA is generally 

required by statute to make reasonable efforts to obtain relevant medical records, to 

provide medical examinations, and to secure medical opinions. 

The Board is an appellate body within the VA that reviews initial decisions made 

under 38 U.S.C. § 511. “Decisions of the Board [are] based on the entire record.” 38 

U.S.C. § 7104(a) (2000). As we have noted, the Board conducts de novo review of 

regional office proceedings based on the record. See Donovan v. West, 158 F.3d 1377, 

1381 (Fed. Cir. 1998). The Board decides approximately 35,000 to 40,000 cases per 

year. 

In a departure from the Board’s primary function as an appellate body, VA 

regulations have since the early 1960s allowed the Board to secure medical opinions 

from within the VA from the Chief Medical Director (now the Under-Secretary of Health). 

In 1999, the Board obtained 482 medical opinions from the Chief Medical Director. The 

securing of such opinions by the Board avoids a remand. 

04-7117, -7128 3 
The regulation permitting the obtaining of medical opinions from the Chief 

Medical Director was first adopted in 1964,1

 but the practice has existed since at least 

1962. The regulation was renumbered and several minor amendments were made over 

the next 35 years.2

 In 2001, the present, somewhat broader regulation was adopted as 

an interim final rule, but the Secretary invited comments concerning the proposed final 

rule. 66 Fed. Reg. 38158, 38159 (July 23, 2001). After receiving comments, the interim 

final rule was adopted as the final rule without any change in the text. 69 Fed. Reg. 

19935, 19937 (Apr. 15, 2004). The regulation states: 

Opinion from the Veterans Health Administration. The Board may obtain a 

medical opinion from an appropriate health care professional in the 

Veterans Health Administration of the Department of Veterans Affairs on 

medical questions involved in the consideration of an appeal when, in its 

judgment, such medical expertise is needed for equitable disposition of an 

appeal. 

 1 The first regulation provided: 

Opinion of the Chief Medical Director. The Board may obtain an expert 

medical opinion from the Chief Medical Director of the Veterans 

Administration on medical questions involved in the consideration of an 

appeal, when in its judgment such medical expertise, in addition to that 

available from the Board’s medical staff, is needed for equitable 

disposition of the appeal. 

38 C.F.R. § 19.144 (1965). 

2 The version in effect in 2000 provided: 

Opinion of the Chief Medical Director. The Board may obtain a medical 

opinion from the Chief Medical Director of the Veterans Health 

Administration of the Department of Veterans Affairs on medical questions 

involved in the consideration of an appeal when, in its judgment, such 

medical expertise is needed for equitable disposition of an appeal. 

38 C.F.R. § 20.901(a) (2000). 

04-7117, -7128 4 
38 C.F.R. § 20.901(a) (2004). The regulations also provide that the veteran must be 

furnished with a copy of the opinion and given 60 days to respond. 38 C.F.R. 

§ 20.903(a) (2004). In the final rule, the Secretary cited 38 U.S.C. §§ 5103A and 7109 

as authority for the regulation. 38 C.F.R. § 20.901(a) (2004). 

Petitioners contend that 38 C.F.R. § 20.901(a) is invalid because it is contrary to 

the appellate function of the Board and the “one review on appeal” requirement of 38 

U.S.C. § 7104(a). We have jurisdiction pursuant to 38 U.S.C. § 502. 

DISCUSSION 

I 

There is no doubt that the challenged regulation does allow the Board to consider 

evidence that was not before the regional office as an original matter. Nor is there any 

doubt that the Board generally functions in an appellate capacity. 

The Board was first established by Executive Order and then by statute in 1946. 

Act of June 22, 1946, ch. 448, 60 Stat. 299. Its functions were codified into statute by 

the Veterans Benefits Act of 1957, Pub. L. No. 85-56, 71 Stat. 83. As described in 

Bates v. Nicholson, 398 F.3d 1355, 1363-64 (Fed. Cir. 2005), the Board’s existence and 

performance of an appellate function long predated judicial review of veterans claims, 

which was not provided until 1988. See Veterans’ Judicial Review Act, Pub. L. No. 100-

687, 102 Stat. 4105 (1988). 

Incorporating the prior regulation, section 1304(a) of the Veterans’ Benefits Act of 

1957 provided that: 

All questions on claims involving benefits under the laws administered by 

the Veterans’ Administration shall be subject to one review on appeal to 

the Administrator. Final decisions on such appeals shall be made by the 

Board. 

04-7117, -7128 5 
Veterans’ Benefits Act § 1304(a), 71 Stat. at 128. This provision has been subject to 

only minor amendments, and currently appears at 38 U.S.C. § 7104(a), which provides, 

in pertinent part: 

All questions in a matter which under section 511(a) of this title is subject 

to decision by the Secretary shall be subject to one review on appeal to 

the Secretary. Final decisions on such appeals shall be made by the 

Board. Decisions of the Board shall be based on the entire record in the 

proceeding. 

(emphasis added). As we held in Disabled American Veterans v. Secretary of Veterans 

Affairs, 327 F.3d 1339, 1346-47 (Fed. Cir. 2003) (“DAV I”), this “one review on appeal” 

provision of section 7104(a) generally bars the Board from considering new evidence 

that was not before the regional office. 

 In DAV I, the petitioner challenged the validity of 38 C.F.R. § 19.9(a)(2) (2002), 

which provided: 

If further evidence . . . or any other action is essential for a proper 

appellate decision, a Board Member or panel of Members may . . . [d]irect 

Board personnel to undertake the action essential for a proper appellate 

decision. 

We held that § 19.9(a)(2) was “inconsistent with 38 U.S.C. § 7104(a), because 

§ 19.9(a)(2) denies appellants ‘one review on appeal to the Secretary’ when the Board 

considers additional evidence.” DAV I, 327 F.3d at 1347. However, in DAV I we also 

noted that there were several exceptions where “Congress has provided express 

statutory authority to permit the Board to obtain additional evidence, such as expert 

medical opinions in specific cases.” Id.3

 3

 The DAV I opinion stated: 

04-7117, -7128 6 
II 

The government argues that 38 U.S.C. § 7109, relied on by the Secretary as 

authority for promulgating the regulation, creates the necessary exception to the “one 

review on appeal” rule in section 7104. The government also argues that, even if the 

statutory authority is ambiguous, deference should be given to the Secretary’s 

interpretation of the statute under Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). We conclude that the statute clearly provides 

authority for the regulation and thus do not reach the deference issue. See id. at 843 

n.9 (“If a court, employing traditional tools of statutory construction, ascertains that 

Congress had an intention on the precise question at issue, that intention is the law and 

must be given effect.”). 

Section 7109 was enacted in 1962 and currently provides: 

§ 7109. Independent medical opinions 

 

Congress has provided express statutory authority to permit the Board to 

obtain additional evidence, such as expert medical opinions in specific 

cases. See, e.g., 38 U.S.C. § 5107(a) (2000) (authorizing Board to obtain 

medical opinions from the VA's Under Secretary for Health (formerly the 

Chief Medical Director)); 38 U.S.C. § 7109 (2000) (authorizing Board to 

obtain independent medical opinions from outside the VA); 38 C.F.R. 

§ 20.901(a) (2002) (authorizing Board to obtain opinions from the 

Veterans Health Administration); 38 C.F.R. § 20.901(b) (authorizing Board 

to obtain medical opinions from the Armed Forces Institute of Pathology). 

Id. at 1347-48. The citation to 38 U.S.C. § 5107(a) referred to the pre-2000 code 

provision concerning the Secretary’s duty to assist claimants, and not the 2000 version. 

That earlier provision stated: “The Secretary shall assist such a claimant in developing 

the facts pertinent to the claim. Such assistance shall include requesting information as 

described in section 5106 of this title.” 38 U.S.C. § 5107 (1994). The provision is now 

codified with amendments at 38 U.S.C. § 5103A, and the VA relied in part on this 

provision in promulgating 38 C.F.R. § 20.901. In light of our decision upholding the 

regulation under section 7109, we need not address petitioners’ argument that section 

5103A cannot be a source of Board authority, nor need we decide whether section 

5103A provides authority for the regulation. 

04-7117, -7128 7 
(a) When, in the judgment of the Board, expert medical opinion, in addition 

to that available within the Department, is warranted by the medical 

complexity or controversy involved in an appeal case, the Board may 

secure an advisory medical opinion from one or more independent 

medical experts who are not employees of the Department. 

 

(b) The Secretary shall make necessary arrangements with recognized 

medical schools, universities, or clinics to furnish such advisory medical 

opinions at the request of the chairman of the Board. Any such 

arrangement shall provide that the actual selection of the expert or experts 

to give the advisory opinion in an individual case shall be made by an 

appropriate official of such institution. 

 

(c) The Board shall furnish a claimant with notice that an advisory medical 

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. 

38 U.S.C. § 7109 (2000) (emphasis added). The petitioners agree that section 7109 

authorizes the Board to secure advisory medical opinions from “independent medical 

experts who are not employees” of the VA. But they argue that the statute does not 

authorize the securing of medical opinions from within the VA. 

However, the language of section 7109 explicitly provides that the Board may 

obtain a medical opinion when “in the judgment of the Board, expert medical opinion, in 

addition to that available within the Department, is warranted by the medical complexity 

or controversy involved in an appeal.” Id. (emphasis added). In Lewis v. United States, 

244 U.S. 134 (1917), the Supreme Court held that a similar statutory provision, 

assuming the existence of legislative action, was the equivalent of providing legislative 

authority. The issue in Lewis was whether the office of surveyor general of Louisiana 

had been abolished by statute. The relevant statute did not appear to expressly abolish 

04-7117, -7128 8 
the office, rather, on its face it only appropriated funds in light of an assumed abolition of 

the office.4

 The Supreme Court held: 

[W]hen Congress acted upon the assumption that the office was abolished 

and provided for the unfinished work pertaining to the surveys, “caused by 

the discontinuance” of the office, such action was tantamount to a direct 

repeal of the act creating the office and had the effect to abolish it. 

244 U.S. at 144. In the present case Congress enacted section 7109 upon the 

assumption—expressed in the statutory text—that the Board had authority to procure an 

internal VA medical opinion. Under Lewis, such action is tantamount to a direct grant of 

authority to secure internal VA opinions in section 7109.5

Even if the statutory text were not clearly an authorization, section 7109 was 

enacted against the background of a long-standing agency practice of securing internal 

VA medical opinions. This practice antedated the enactment of section 7109 in 1962. 

Act of Sept. 19, 1962, Pub. L. No. 87-671, 76 Stat. 557. The original House version of 

Public Law 87-671 would have explicitly required the Chief Medical Director to submit 

medical opinions to the Board in certain categories of cases. See 108 Cong. Rec. 

5517-18 (Apr. 2, 1962). The Senate version of the bill removed the mandatory 

 4 The relevant statute provided: 

To enable the Secretary of the Interior to complete the unfinished drafting 

and field-note writing pertaining to surveys in the States of Minnesota, 

North Dakota, and Louisiana, caused by the discontinuance of the offices 

of the surveyors general in those States, six thousand five hundred dollars 

[is appropriated]. 

Act of Mar. 4, 1909, 35 Stat. 945, 987 (emphasis added). 

5 To be sure the dissent points out that the heading of § 7109 refers to 

“Independent medical opinions.” But the heading cannot limit the statutory authorization 

to such independent medical opinions because “the title of a statute and the heading of 

04-7117, -7128 9 
requirement of securing medical opinions from the Chief Medical Director. The 

legislative history makes clear that Congress was not in any way disapproving the 

Board’s then already-existing practice, but only wished to leave the Board with 

discretion over the matter. The Senate Report stated: 

The bill, as approved by the committee, makes no reference to the Board 

of Veterans’ Appeals securing an advisory opinion from the Chief Medical 

Director . . . since this is a matter within Agency discretion and ample 

authority for this practice now exists. In fact, the committee was informed 

that between 200 and 300 cases per year are currently submitted to the 

Chief Medical Director by the Board of Veterans’ Appeals for expert 

advisory opinions. 

S. Rep. No. 87-1844, at 2 (1962) (emphasis added). The Senate version of the bill was 

eventually passed. See 108 Cong. Rec. 18406 (Sept. 4, 1962); see also Padgett v. 

Nicholson, 19 Vet. App. 133, 141-42 (2005) (summarizing the legislative history of 

§ 7109). The legislative history shows that Congress in enacting section 7109 

contemplated that departmental medical opinions would be secured by the Board.6

Both prior and subsequent to the enactment of section 7109, Congress has done 

nothing to disturb this well-settled agency practice, and as Senate Report 87-1844 

indicates, this inaction was intentional. As the Supreme Court and this court have 

repeatedly held, congressional inaction in the face of long-standing agency practice can 

rise to the level of implied adoption. Thus in United States v. Midwest Oil Co., 236 U.S. 

 

a section cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v. Baltmore 

& Ohio R.R., 331 U.S. 519, 528-29 (1947). 

6 See Br. of Disabled American Veterans at 18 (“[T]he report indicates that 

in 1962 the Committee believed there was authority for [the Board to obtain and 

consider medical opinions offered by VA employees].”). The 1962 legislative history is 

not undermined by the subsequent legislative history in a 1988 House Report, stating 

that the Board may “on its own initiative, obtain medical advice from independent 

medical specialists.” H.R. Rep. No. 100-963, at 15 (1988). This statement does not 

implicitly exclude obtaining medical opinions from within the VA. 

04-7117, -7128 10 
459 (1915), the Court held that congressional silence in the face of a long-standing 

Executive practice of temporarily withdrawing public land from private acquisition (a 

practice that was reported to Congress) was “equivalent to consent to continue the 

practice until the power was revoked by some subsequent action by Congress.” Id. at 

481; see United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 549-50 (1940); 

Micron Tech., Inc. v. United States, 243 F.3d 1301, 1312 n.10 (Fed. Cir. 2001) 

(collecting cases); San Huan New Materials High Tech, Inc. v. Int’l Trade Comm'n, 161 

F.3d 1347, 1355 (Fed. Cir. 1999) (noting that Congress ratifies agency practice when it 

legislates in that area of law covered by practice, with full awareness of agency’s 

practice, and does not change or refer to that practice). Here, the long-standing agency 

practice, recognized both in the legislative history and the text of section 7109, was 

specifically approved. 

As the dissent points out, reliance on long-standing agency practice must be 

tempered with some caution in the veterans context because judicial review was not 

provided until 1988. Thus in Brown v. Gardner, 513 U.S. 115, 122 (1994), the Supreme 

Court held a VA regulation invalid despite the fact that it had existed for over sixty years. 

Gardner is plainly distinguishable. In Gardner “the record of congressional discussion 

preceding reenactment [made] no reference to the VA regulation, and there [was] no 

other evidence to suggest that Congress was even aware of the VA’s interpretive 

position.” Id. at 121.7

 In contrast, when Congress enacted section 7109 it was not only 

 7 See also Schism v. United States, 316 F.3d 1259, 1297 (Fed. Cir. 2002) 

(en banc) (“[T]he Supreme Court has repeatedly made clear that an important 

foundation of acquiescence is that Congress as a whole was made aware of the 

administrative construction or interpretation and did not act on contrary legislation 

despite having this knowledge.”); Butterbaugh v. Dep’t of Justice, 226 F.3d 1332, 1342 

04-7117, -7128 11 
aware of the Board’s practice of securing internal VA medical opinions, it explicitly 

recognized and endorsed that practice in both the legislative history and the statutory 

text. Under these circumstances, Gardner does not undermine our conclusion that 

Congress has ratified and authorized the Board’s long-standing practice. Sears v. 

Principi, 349 F.3d 1326, 1330 (Fed. Cir. 2003) (“When considering the legislative 

context of these provisions, it is also worth noting that the DVA regulation has been in 

place for many years, without legislative overruling, and despite frequent legislation by 

Congress.”). 

Finally, we reject petitioner American Legion’s argument that, even if the Board is 

authorized to secure VA opinions, it may not then consider them, for authority to 

consider an opinion inherently flows from the authority to secure it. We also note that, 

for the first time in its reply brief, the American Legion has argued that the current 

regulation is overbroad because it allows the securing of medical opinions from any 

“appropriate health care professional in the Veterans Health Administration” instead of 

only the Chief Medical Director, since the legislative history only noted the practice of 

receiving opinions from the Chief Medical Director. We reject that argument because 

section 7109 broadly permits the Board to obtain medical opinions from “within the 

Department” as a whole. 

Thus, we conclude that the statute authorizes the Board to secure medical 

opinions from “within the Department” while a claim is on appeal, and that the regulation 

is a valid exercise of that authority. 

 

(Fed. Cir. 2003) (“[C]ourts are loath to presume congressional endorsement unless the 

issue plainly has been the subject of congressional attention.”); Micron Tech., 243 F.3d 

at 1311-12 & n.10. 

04-7117, -7128 12 
CONCLUSION 

For the foregoing reasons, the petition for review is denied. 

DENIED

 No costs. 

04-7117, -7128 13 
United States Court of Appeals for the Federal Circuit 

04-7117, -7128 

DISABLED AMERICAN VETERANS, 

Petitioner, 

and 

THE AMERICAN LEGION and 

THE NATIONAL VETERANS LEGAL SERVICES PROGRAM, 

 Petitioners, 

 

v. 

SECRETARY OF VETERANS AFFAIRS, 

 Respondent. 

MAYER, Circuit Judge, dissenting. 

 Because neither 38 U.S.C. § 7109(a) nor 38 U.S.C. § 5103A authorizes the 

Board of Veterans’ Appeals to secure medical opinions from Department of Veterans 

Affairs (“VA”) employees, and because neither provides an exception to the requirement 

of 38 U.S.C. § 7104(a) that “[a]ll questions . . . subject to decision by the Secretary shall 

be subject to one review on appeal,” 38 C.F.R. § 20.901(a) is invalid. Section 
20.901(a)1

 is inconsistent with section 7104(a)2 because it denies appellants “one 

review on appeal to the Secretary” when, absent a veteran’s waiver, it allows the board 

to seek and consider medical opinions from health care professionals from within VA 

without remanding the case to the agency of original jurisdiction, or regional office, for 

initial consideration. Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 

1339, 1345-48 (Fed. Cir. 2003) (“DAV I”). “Together, [38 U.S.C.] §§ 511(a) and 7104(a)

dictate that the Board acts on behalf of the Secretary in making the ultimate decision on 

claims and provides ‘one review on appeal to the Secretary’ of a question ‘subject to 

decision by the Secretary’ under § 511(a).” Id. at 1347. The board was not created by

the Secretary and does not operate under any authority delegated to it by the Secretary. 

See 38 U.S.C. § 7101(a). To the contrary, the clear congressional design and purpose

was to create an appellate body independent of the Secretary to review decisions of the 

various VA agencies of original jurisdiction. “The Board is ‘primarily an appellate 

tribunal’ of the VA that decides appeals from denials of claims for veterans’ benefits,” 

DAV I, 327 F.3d at 1346 (quoting Scates v. Principi, 282 F.3d 1362, 1366-67 (Fed. Cir.

2002)), and Congress must expressly grant it authority to consider evidence in the first 

instance. 

 1 The challenged regulation allows the board to “obtain a medical opinion 

from an appropriate health care professional in the Veterans Health Administration of 

the Department of Veterans Affairs on medical questions involved in the consideration 

of an appeal when, in its judgment, such medical expertise is needed for equitable 

disposition of an appeal.” 38 C.F.R. § 20.901(a) (2004). 

2

 Section 7104(a) mandates, in pertinent part, that “All questions in a matter

which under section 511(a) of this title is subject to decision by the Secretary shall be 

subject to one review on appeal to the Secretary.” 

04-7117,-7128 2
The Secretary relies primarily on section 7109(a)3

 to provide the exception to the 

board’s appellate jurisdiction. Nothing in section 7109(a), however, authorizes the 

Secretary to augment the board’s jurisdiction with authority to consider new medical 

opinions obtained from within the VA. Section 7109 is tellingly entitled “Independent

medical opinions” and provides only that “the Board may secure an advisory medical

opinion from one or more independent medical experts who are not employees of the 

Department.” (Emphasis added). 

The Secretary, and the court, rely entirely on the nonessential phrase “in addition 

to that available within the Department” contained in section 7109(a) to justify the 

regulation. This language is not a grant of authority; it simply distinguishes preexisting 

VA medical opinions from the congressional authorization for the board to request

independent medical opinions. A plain reading of the statute finds only one grant of

authority allowing the board to secure and consider medical opinions from “independent

medical experts who are not employees of the Department,” which does not extend to 

medical opinions from within the VA. 

Similarly, 38 U.S.C. § 5103A4

 does not support 38 C.F.R. § 20.901(a). Within the 

Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, Congress imposed a 

 3 38 U.S.C. § 7109(a) provides: “Independent medical opinions -- (a) 

When, in the judgment of the Board, expert medical opinion, in addition to that available 

within the Department, is warranted by the medical complexity or controversy involved 

in an appeal case, the Board may secure an advisory medical opinion from one or more

independent medical experts who are not employees of the Department.” 

4 Section 5103A(d) requires, in pertinent part, that “[i]n the case of a claim

for disability compensation, the assistance provided by the Secretary under subsection

(a) [duty to assist] shall include providing a medical examination or obtaining a medical

opinion when such an examination or opinion is necessary to make a decision on the 

claim.” 

04-7117,-7128 3
number of specific duties and responsibilities on the Secretary to assist claimants, as

set forth in 38 U.S.C. § 5103A. For instance, it requires the Secretary to provide 

medical opinions when necessary to properly evaluate a claim for benefits. Neither the 

statutory language of section 5103A(d), nor the legislative history of the Veterans

Claims Assistance Act of 2000, permits the Secretary to delegate authority to obtain

medical opinions from within the VA to the board. 

The Secretary relies on the historic board practice of requesting medical opinions

from within the VA. But until recently, VA regulations “were explicitly insulated from 

judicial review.” H.R. Rep. No. 100-963, 100th Cong., 2d Sess. 10, reprinted in 1988 

U.S.C.C.A.N. 5782, 5791. “Many VA regulations have aged nicely simply because 

Congress took so long to provide for judicial review. The length of such regulations’ 

unscrutinized and unscrutinizable existence, however, does not in itself form a basis for 

us to presume they are valid and therefore defer to them. If anything, Congress’s 

lengthy deliberation and carefully crafted scheme for judicial review of VA regulations

counsels for vigorous review.” Gardner v. Brown, 5 F.3d 1456, 1463-64 (Fed. Cir. 

1993), aff’d, 513 U.S. 115, 121-22 (1994) (reasoning that “congressional silence lacks

persuasive significance, particularly where administrative regulations are inconsistent

with the controlling statute,” and that “[a] regulation’s age is no antidote to clear

inconsistency with a statute”) (internal citations and quotations omitted). To suggest

that congressional authority is not required to sustain a regulation simply because the 

regulation condones a long standing practice eviscerates the role of Congress. 

“[E]ven though the amendments to § [20.901(a)] may further the VA’s stated 

objective of efficiency, striking the sensible balance between decreasing appeal 

04-7117,-7128 4
processing times and the competing public policy of protecting an appellant’s right to 

due process is a matter for Congress, not this court.” See DAV I, 327 F.3d at 1348.

Section 20.901(a) is invalid because the Secretary has countermanded the appellate 

role of the board without congressional authority. 

04-7117,-7128 5