This morning the Federal Circuit issued a prededential en banc opinion in a veterans case, National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, concluding that the Federal Circuit had jurisdiction over the case and that a Federal Circuit rule is invalid given the applicable statute of limitations. The court also issued a nonprecedential opinion in another veterans case and a nonprecedential opinion in a patent case. Here are the introductions to the opinions.
National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs
National Organization of Veterans’ Advocates, Inc., (“NOVA”), Peter Cianchetta, Michael Regis, and Andrew Tangen petition this court under 38 U.S.C. § 502 to review two interpretive rules that are set out in two provisions of the Veterans Affairs (“VA”) Adjudication Procedures Manual M21-1 (the “Manual”) and a Federal Register publication. The first interpretive rule, the Knee Joint Stability Rule, was promulgated on April 13, 2018, and is set forth in Section III.iv.4.A.6.d of the Manual. It assigns a joint instability rating under Diagnostic Code (“DC”) 5257, 38 C.F.R. § 4.71a, based on the amount of movement that occurs within the knee joint. The second interpretive rule, the Knee Replacement Rule, provides that evaluation under DC 5055, 38 C.F.R. § 4.71a, is not available for partial knee replacement claims. The Knee Replacement Rule was first published in the Federal Register. That publication announced that section 4.71a was amended to include an explanatory note that “‘prosthetic replacement’ means a total, not a partial, joint replacement,” 80 Fed. Reg. 42,040, 42,041 (July 16, 2015). The Knee Replacement Rule was later published in a somewhat different form in a Manual provision, which was promulgated on November 21, 2016, and is currently located in Section III.iv.4.A.6.a of the Manual. The Manual provision informs regional office staff that evaluation under DC 5055, 38 C.F.R. § 4.71a, is not available for partial knee replacement claims filed and decided on or after July 16, 2015.
We conclude that NOVA has standing because it has veteran members who are adversely affected by the challenged Rules. We also conclude that the Knee Joint Stability Rule Manual provision is an interpretive rule reviewable under section 502 and that it constitutes final agency action. As to the Knee Replacement Rule, we also conclude that we have jurisdiction under section 502 and that it is final agency action. However, we leave to the merits panel the question whether the Knee Replacement Manual provision or the Federal Register publication constitutes the reviewable agency action. We thus conclude that we have jurisdiction over the petition for review.
We also hold that the petitioners’ challenge is timely under the six-year statute of limitations provided by 28 U.S.C. § 2401(a) and that Federal Circuit Rule 15(f), establishing a 60-day time limit for bringing section 502 petitions, is invalid.
We refer this case to a panel for adjudication on the merits.
Valenzuela v. Wilkie
Daniel C. Valenzuela appeals a decision of the United States Court of Appeals for Veteran Claims (“Veterans Court”). The Veterans Court affirmed a decision of the Board of Veterans’ Appeals (“Board”), denying him entitlement to service connection for carpal tunnel syndrome of the right wrist and finding no clear and unmistakable error in a 2005 Department of Veterans Affairs (VA) regional office (RO) decision that denied him entitlement to service connection for carpal tunnel syndrome of the left wrist, tinnitus, and a cervical spine condition. Because we lack jurisdiction to review the issues Mr. Valenzuela raises in this appeal, we dismiss.
In re Fulton
David John Fulton appeals from the final decision of the Patent Trial and Appeal Board affirming the rejection of certain claims in U.S. Patent Application No. 12/789,280 under 35 U.S.C. § 103. The rejected claims cover methods of making a low-carbohydrate baked food product using egg-bound water and psyllium fiber instead of traditional flour. Because substantial evidence supports the Board’s determination of obviousness, we affirm.