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Guest Post by Blair E. Thompson

In 2020, the Federal Circuit addressed important questions regarding “pro-claimant” policies and rules governing the Department of Veterans Affairs. The court also approved VA’s interpretation of its regulation regarding discharges due to “willful and persistent misconduct” and paved the way for challenges to VA’s internal adjudication policies and procedures manual.

I. Introduction

From the creation of the U.S. Department of Veterans Affairs (“VA”) in 1930—which was then the Veterans Administration—until the enactment of the Veterans Judicial Review Act (“VJRA”) in 1989, decisions by VA went without judicial review.[1] Since Congress intended for VA’s disability adjudication system to be “non-adversarial, pro-claimant, and informal,” it did not intend for veterans to need to hire attorneys to help them get benefits, much less appeal to an adversarial court.[2]

Post-VJRA, VA is still expected to function with “a high degree of informality and solicitude for the claimant.”[3] Many “pro-claimant” rules still govern claims adjudication, including the “benefit of the doubt” standard of proof and VA’s statutory duty to assist veterans in developing their claims.[4] The development of veterans’ law through judicial review has led appellate courts to answer questions of how the “pro-claimant” policies and rules governing VA adjudication apply in different contexts, while also taking into account deference to the Agency and to Congress.[5] In 2020, the Federal Circuit addressed such questions in contexts of systemic delay in VA adjudication, effective dates of veterans’ awards, and the scope of a veteran’s disability claim.

Further, the Federal Circuit upheld VA’s interpretation of its regulation regarding a veteran’s discharge due to “willful and persistent misconduct” as a bar to benefits, and it paved the way for challenges to VA’s internal adjudication policies and procedures manual, known as the M21-1.

II. Delay in VA Adjudication

In 2020, the Federal Circuit issued two decisions addressing delay in VA’s adjudication of veterans’ disability compensation claims. The decisions address two different procedural strategies veterans’ advocates use to remedy VA delay: an individual petition for a writ of mandamus (addressed in Mote v. Wilkie) and a class action (addressed in Monk v. Wilkie).[6]

Mote v. Wilkie

In its September 2020 decision in Mote v. Wilkie, the Federal Circuit found that the Veterans Court’s failure to apply the standard outlined in Telecommunications Research & Action Center v. FCC (“TRAC”)[7] before dismissing a petition for a writ of mandamus alleging unreasonable delay by VA constituted legal error.[8] In a prior decision, Martin v. O’Rourke, the Federal Circuit held that the TRAC standard is the standard that the Veterans Court must use when evaluating mandamus petitions based on unreasonable delay instead of the standard outlined by the Veterans Court in Costanza v. West.[9]

In this case, Mrs. Eugenia Mote—the widow of an Air Force veteran who honorably served from February 1961 to May 1965—appealed the dismissal of her petition for a writ of mandamus by the Veterans Court in which she alleged unreasonable delay on behalf of VA in resolving her claims for disability compensation.[10] Mrs. Mote’s claims began in November 2010 when her husband, Mr. Mote, filed a claim for VA disability compensation for ischemic heart disease due to Agent Orange exposure in Vietnam.[11] VA denied the claim in November 2012.[12] Mr. Mote died from ischemic heart disease in 2013, so Mrs. Mote became a substitute party to his claim, the denial of which Mr. Mote had already appealed, and she also filed a dependency-and-indemnity compensation (“DIC”) claim.[13] In May 2016, VA issued a decision denying her claims.[14] Mrs. Mote appealed to the Board of Veterans’ Appeals the next month.[15]

In September 2016, she petitioned the Veterans Court for a writ of mandamus under the All Writs Act alleging unreasonable delay in her case.[16] After the Veterans Court denied the petition, Mrs. Mote appealed to the Federal Circuit, which held in Martin v. O’Rourke that the Veterans Court must use the TRAC standard when evaluating a mandamus petition alleging unreasonable delay.[17]

Mrs. Mote then filed an amended mandamus petition with the Veterans Court in which she further requested a “reasoned decision” from the Board of Veterans Appeals, as well as progress reports until the issuance of the Board decision.[18] The Veterans Court, in a single-judge memorandum decision in April 2019, relied on the fact that the Board of Veterans Appeals had not yet held the hearing that Mrs. Mote had requested and found, therefore, that her petition was “premature.”[19] While the April 2019 decision recited the TRAC standard, it did not apply it.[20]

Mrs. Mote’s Board hearing was held in May 2019.[21] That same month, Mrs. Mote moved for a panel decision from the Veterans Court.[22] Even though the Board hearing had been held by that time, the Veterans Court adopted the previous single-judge decision as the decision of the Court.[23] Eight days later, the Board remanded Mrs. Mote’s claims to the VA Regional Office for further factual development.[24]

While the government argued that the Board’s remand rendered Mrs. Mote’s appeal of the Veterans Court decision to the Federal Circuit moot because it satisfied her request for a decision, the Federal Circuit disagreed, citing its precedent that a Board decision “does not mean a mere remand.”[25]

With respect to the merits, the Federal Circuit found that the Veterans Court once again failed to apply the TRAC standard to Mrs. Mote’s amended petition for a writ of mandamus that she filed after Martin.[26] In holding that the Veterans Court committed legal error by failing to apply the TRAC standard to Mrs. Mote’s petition for writ of mandamus, the Federal Circuit found it important that in her amended petition Mrs. Mote also asked for progress reports from VA every 30 days updating her on the status of her appeal until the issuance of the decision.[27] Because Mrs. Mote requested this other form of relief, the Federal Circuit reasoned that the pending Board hearing did not render her request moot or prevent the Veterans Court from providing another remedy, “such as giving the Board a . . . deadline by which to issue a decision.”[28]

Monk v. Wilkie

The petitioners in Monk v. Wilkie asked the Federal Circuit to give the Board of Veterans Appeals a one-year deadline by which to issue decisions for a class of veterans who had been waiting over one year for decisions from the Board since time they filed their Notices of Disagreement.[29] In its October 2020 decision, the Federal Circuit declined to impose such a deadline.[30] It held that, although the proposed class of veterans suffered delay, there was no single remedy that could provide relief to the proposed class other than imposing a one-year deadline; therefore, the proposed class action did not satisfy the “commonality” requirement of Federal Rule of Civil Procedure 23(b)(2).[31]

In its reasoning, the Federal Circuit relied on recently enacted legislation designed to address the problem of delay in VA adjudication—the Veterans Appeals Improvement and Modernization Act of 2017—which made several changes to VA’s appeals processes.[32] Without explicitly espousing the government’s optimism about the new law or the petitioners’ concerns in spite of the new law, the Court concluded that judicial intervention should only be contemplated after Congress’s “‘carefully crafted . . . structure’” can be evaluated in practice.[33]

Judge Reyna wrote separately to emphasize that class certification is still available to veterans and “should be afforded to [them] upon a showing of commonality.”[34] Judge Reyna also noted that the appeals system put in place by the new legislation “does not provide a remedy for the 200,000 veterans” with claims pending under the old appeals system, and that it “remains to be seen whether the new . . . system will resolve these deeply troubling delays.”[35]

III. The Scope of a Veteran’s Claim

Beyond these cases addressing delay in VA adjudication, the Federal Circuit also issued other important decisions last year. One addressed the scope of a veteran’s claim for disability compensation. In Sellers v. Wilkie, the Court held that a veteran’s formal claim for disability compensation “is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality.”[36]

The petitioner, Mr. Sellers, served honorably in the US Navy from April 1964 until February 1968 and in the US Army from January 1981 to February 1996.[37] He filed a formal claim for disability compensation in March 1996 in which he specifically identified leg, knee, back, finger, and ear injuries, and further wrote, “Request for s/c for disabilities occurring during active duty service.”[38] In 2011, Mr. Sellers was diagnosed with Major Depressive Disorder (“MDD”).[39] He applied for disability compensation for MDD and was granted service connection with an effective date of September 2009, which was the date of his claim for a psychiatric disability.[40]

Mr. Sellers sought an earlier effective date for his MDD based upon his March 1996 application for “disabilities occurring during active duty service,” but the Board of Veterans Appeals found that the March 1996 claim did not include one for a psychiatric disorder.[41] On appeal, the Veterans Court found it significant that at the time of VA’s decision on his March 1996 claim, it had medical records in its possession that showed “multiple occasions on which [Mr. Sellers] had received treatment for psychiatric conditions, and an undisputed in-service diagnosis of a psychiatric condition.”[42] The Veterans Court held that Mr. Sellers’s statement on his March 1996 application, along with VA’s possession of his medical records, might have been enough to deem the March 1996 writing the initiation of the claim for MDD if Mr. Sellers’ in-service psychiatric diagnosis was “reasonably identifiable” from the records before VA when it initially considered his claim.[43]

The Federal Circuit held that the Veterans Court formulated an incorrect legal test for determining if Mr. Sellers is entitled to the March 1996 effective date for his MDD.[44] The correct test—based on the relevant statutes, regulations, and judicial precedent—is that a veteran’s claim is “required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality.”[45]

The Federal Circuit noted that its holding is not inconsistent with VA’s statutory duty to assist the veteran in obtaining evidence necessary to substantiate the veteran’s claim.[46] Despite the evidence of Mr. Sellers’ in-service psychiatric diagnosis that was in VA’s possession when it issued the decision on the March 1996 claim, the Court stated that “[u]ntil the Secretary comprehends the current condition on which the claim is based, the Secretary does not know where to begin to develop the claim to its optimum.”[47]

IV. Effective Dates

Another important set of cases decided by the Federal Circuit in 2020 impact effective dates in veterans’ disability claims: Lang v. Wilkie, Jones v. Wilkie, and Kisor v. Wilkie.[48] An effective date is the date on which a veteran begins to receive compensation for a service-connected disability.[49]

Lang v. Wilkie

The Federal Circuit’s decision in Lang v. Wilkie answers a question involved in legacy claims (claims that are not in the new, modernized appeals system established by the Veterans Appeals Improvement and Modernization Act of 2017) regarding when VA has constructive possession of a veteran’s VA medical records.[50]

A VA decision becomes final if the veteran does not appeal it or submit additional evidence before the expiration of the appeal period.[51] For legacy claims, under 38 C.F.R. § 3.156(b), new and material evidence “received” prior to the expiration of the appeal period “will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.”[52]

In Lang, the Federal Circuit held that evidence is “constructively received” by VA after the issuance of a decision if the evidence “(1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veterans’ claim.”[53] It held that there is “no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply.”[54] Consequently, when VA constructively receives such post-decision evidence, the appeal remains open until VA determines whether that evidence is “new and material.”[55]

Jones v. Wilkie

In Jones v. Wilkie, the Federal Circuit considered an effective date issue under 38 C.F.R. § 3.156(c).[56] Under 38 C.F.R. § 3.156(c)(1), VA must reconsider a veteran’s claim if, at any time after VA issues a decision on a claim, VA receives relevant official service department records that existed, but were not part of the record when VA previously decided the claim. Under 38 C.F.R. § 3.156(c)(3), the effective date of an award of disability compensation based on such records is the date entitlement arose, or the date VA received the previously decided claim, whichever is later.

In this case, the Federal Circuit held that, under 38 C.F.R. § 3.156(c)(3), the effective date of an award of disability compensation based on records described in § 3.156(c)(1) can only be on the date VA received the previously decided claim if the award of disability compensation was based in whole or in part on those records.[57]

Kisor v. Wilkie

The Federal Circuit examined 38 C.F.R. § 3.156(c) again in Kisor v. Wilkie.[58] The case appeared before the Federal Circuit in 2020 on remand from the Supreme Court after it found that the Federal Circuit in 2017 was too quick to declare 38 C.F.R. § 3.156(c) to be ambiguous, leading to its premature application of Auer v. Robbins deference, which should be applied only if the regulation is genuinely ambiguous.[59]

Mr. Kisor sought to change his effective date for his award of disability compensation for post-traumatic stress disorder from June 2006, the date he re-opened his claim that was then granted, to December 1982, the date he submitted his original claim that was denied in 1983.[60] The Board of Veterans Appeals determined that the service records obtained to re-open the claim in June 2006 were not “relevant” under § 3.156(c)(1) because they did not pertain to the basis of the 1983 denial; therefore, the effective date for the award remained June 2006.[61]

In its first Kisor decision in 2017, the Federal Circuit found ambiguity in the word “relevant” in 38 C.F.R. § 3.156(c)(1), which states that VA will reconsider a claim after it issues a decision if it receives “relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.”[62] As Justice Kagan explained, the Federal Circuit was faced with two possible readings of the regulation: (1) that a service record need not relate to the basis of the prior denial in order to be “relevant,” but could relate to another element for establishing entitlement to disability benefits, or (2) that a service record is only “relevant” if it relates to the basis of the prior denial.[63]

In its August 2020 decision, the Federal Circuit found that the term “relevant” in 38 C.F.R. § 3.156(c)(1) is not ambiguous and, therefore, that it need not apply Auer deference.[64] The Federal Circuit held that a “relevant” service record under this regulation is one that speaks to the basis of VA’s prior decision denying the claim.[65] The service record must “address a dispositive issue and therefore affect the outcome of the case.”[66] The Federal Circuit concluded that neither the Board nor the Veterans Court erred in denying Mr. Kisor an earlier effective date based on this reading of the word “relevant.”[67]

V. Judicial Review of Agency Manual Provisions

In another important case decided last year, National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs (“NOVA”), the Federal Circuit overruled its 2017 decision in Disabled American Veterans v. Secretary of Veterans Affairs, in which the court had held that it did not have jurisdiction under 38 U.S.C. § 502 to review provisions of VA’s Adjudication Procedures Manual M21-1 (“the Manual”).[68] The Manual sets out policies and procedures that are binding upon VA staff who make initial decisions on veterans’ claims at the regional offices.[69] The Board of Veterans Appeals is not bound by the Manual, but it is required to discuss relevant Manual provisions in its decisions.[70] The Federal Circuit acknowledged in NOVA that the rules in the Manual “have a practical effect on veterans seeking benefits” since “nearly all veteran benefits claims are resolved at the regional office stage, the Manual is effectively ‘the last word for the vast majority of veterans.’”[71]

In NOVA, petitioners sought review of two provisions of the Manual: the Knee Joint Stability Rule and the Knee Replacement Rule.[72] The Federal Circuit held that it has jurisdiction to review the Knee Joint Stability Rule because it qualifies as a “guideline[] of general applicability” and constitutes final agency action.[73] Further, it held that this Rule was required to be published in the Federal Register under 38 U.S.C. § 552(a)(1).[74] The Federal Circuit found that it had jurisdiction to review the Knee Replacement Rule, which was published in the Federal Register in 2015, and published as a Manual provision in November 2016; however, it referred the issue of whether the Rule is reviewable as a Manual provision or as a Federal Register publication for a panel decision.[75]

VI. A Discharge for “Willful and Persistent Misconduct” is “Issued Under Dishonorable Conditions”

In another important case addressing veterans’ law, Garvey v. Wilkie, the Federal Circuit upheld VA’s interpretation of a veteran’s discharge due to “willful and persistent misconduct” as one that is “issued under dishonorable conditions” and, therefore, a bar to VA benefits under 38 C.F.R. § 3.12(d)(4).[76]

The petitioner, Mrs. Garvey, is the widow of Mr. Garvey, who served in the US Army from February 1966 to May 1970 when he was discharged for willful and persistent misconduct.[77] In seeking death and indemnity compensation and death pension benefits based on Mr. Garvey’s service, Mrs. Garvey argued that “willful and persistent misconduct” under 38 C.F.R. § 3.12(d)(4) is contrary to statute because the relevant statute does not include “willful and persistent misconduct” as a bar to benefits.[78]

The Federal Circuit turned to the statutory definition of a veteran in 38 U.S.C. § 101(2), which states that a veteran is a person who was discharged “under conditions other than dishonorable.”[79] To understand this ambiguous phrase, the Court examined the statute’s legislative history.[80] It concluded that a discharge for “willful and persistent misconduct” is under “dishonorable conditions” under 38 U.S.C. § 101(2) and, therefore, is a bar to benefits.[81]

VII. Conclusion

With judicial review beginning only in 1989, the canon of veterans’ law is relatively new and continues to develop. In 2020, the Federal Circuit answered many significant questions that lie at the intersection of statutory interpretation and agency regulation in the context of a very unique and important subject matter: American veterans.

Blair E. Thompson is an Assistant Clinical Professor of Law serving in the Robert W. Entenmann Veterans Law Clinic at the Maurice A. Deane School of Law at Hofstra University. She previously served as an attorney with the Board of Veterans Appeals in the U.S. Department of Veterans Affairs. She now teaches law students and represents veterans in matters before the U.S. Department of Veterans Affairs and the U.S. Court of Appeals for Veterans Claims. Her article, The Doctor Will Judge You Now, which applies a due process analysis to VA’s use of Compensation and Pension Examinations in disability adjudication, is forthcoming in Volume 89, Issue 4 of the University of Cincinnati Law Review in May 2021.

  1. See Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988); Michael J. Wishnie, “A Boy Gets Into Trouble”: Service Members, Civil Rights, and Veterans’ Law Exceptionalism, 97 B.U. L. Rev. 1709, 1723-24 (2017). ↑

  2. Michael P. Allen, Due Process and the American Veteran: What the Constitution Can Tell us About the Veterans’ Benefits System, 80 U. Cin. L. Rev. 501, 507-11 (2012); Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 321-26 (1985). ↑

  3. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431 (2011) (quoting Walters, 473 U.S. at 311). ↑

  4. Allen, supra note 2, at 507-11. ↑

  5. Id.; see, e.g., Hugh B. McClean, Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights and Non-Adversarial Procedures in the VA Disability System, 72 SMU L. Rev. 277, 288-291 (2019). ↑

  6. Mote v. Wilkie, 976 F.3d 1337 (Fed. Cir. 2020); Monk v. Wilkie, 978 F.3d 1273 (Fed. Cir. 2020). ↑

  7. Telecommunications Research & Action Center v. Fed. Commc’ns Comm’n, 750 F.2d 70 (D.C. Cir. 1984). ↑

  8. Mote v. Wilkie, 976 F.3d 1337, 1342-47 (Fed. Cir. 2020); Costanza v. West, 12 Vet. App. 133 (Vet. App. 1999). ↑

  9. Martin v. O’Rourke, 891 F.3d. 1338, 1344-48 (Fed. Cir. 2018). ↑

  10. Mote, 976 F.3d at 1338-39. ↑

  11. Id. ↑

  12. Id. ↑

  13. Id. ↑

  14. Id. ↑

  15. Id. ↑

  16. Id.; All Writs Act, 28 U.S.C. § 1651. ↑

  17. Mote, 976 F.3d at 1339; Martin v. O’Rourke, 891 F.3d. 1338, 1344-48 (2018). ↑

  18. Mote, 976 F.3d at 1339-40. ↑

  19. Id. at 1340 (quoting Mote v. Wilkie, No. 16-2506, 2019 WL 1599447 (Vet. App. Apr. 16, 2019)). ↑

  20. Id. at 1340, 1346. ↑

  21. Id. at 1340. ↑

  22. Id. ↑

  23. Id. ↑

  24. Id. ↑

  25. Id. at 1341-42 (quoting Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005)). ↑

  26. Id. at 1342-45. ↑

  27. Id. at 1344-45. ↑

  28. Id. ↑

  29. Monk v. Wilkie, 978 F.3d 1273, 1274 (Fed. Cir. 2020). ↑

  30. Id. at 1277. ↑

  31. Id. at 1275, 1277-78. ↑

  32. Id. at 1275-76. ↑

  33. Id. at 1276-77 (quoting Sugrue v. Derwinski, 26 F.3d 8, 12-13 (2d Cir. 1994)). ↑

  34. Id. at 1278. ↑

  35. Id. at 1278. ↑

  36. Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020), petition for cert. filed (U.S. Feb. 22, 2021) (No. 20-1148). ↑

  37. Id. at 1330. ↑

  38. Id. ↑

  39. Id. at 1331. ↑

  40. Id. ↑

  41. Id. at 1331-32. ↑

  42. Id. at 1333. ↑

  43. Id. ↑

  44. Id. at 1338. ↑

  45. Id. at 1337-38. ↑

  46. Id. at 1338; see 38 U.S.C. § 5103A. ↑

  47. Sellers, 965 F.3d at 1333, 1338. ↑

  48. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Jones v. Wilkie, 964 F.3d 1374 (Fed. Cir. 2020); Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). ↑

  49. See 38 USC § 5110 (2018). ↑

  50. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). ↑

  51. See 38 U.S.C. § 7105(c); 38 U.S.C. § 7104(b); 38 C.F.R. § 3.156(b). ↑

  52. 38 C.F.R. § 3.156(b). ↑

  53. Lang, 971 F.3d at 1354. ↑

  54. Id. ↑

  55. See id. at 1355; 38 C.F.R. § 3.156(b). ↑

  56. See Jones v. Wilkie, 964 F.3d 1374 (Fed. Cir. 2020). ↑

  57. Id. at 1380-81. ↑

  58. Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). ↑

  59. Kisor v. Wilkie, 139 S. Ct. 2400, 2423-24 (2019); see Auer v. Robbins, 519 U.S. 452 (1997). ↑

  60. Kisor, 969 F.3d at 1336-38. ↑

  61. Id. at 1339-43. ↑

  62. Kisor v. Wilkie, 869 F.3d 1360, 1367 (Fed. Cir. 2017); Kisor v. Wilkie, 139 S. Ct. 2400, 2409 (2019); Kisor v. Wilkie, 964 F.3d 1333, 1335 (Fed. Cir. 2020). ↑

  63. Kisor v. Wilkie, 139 S. Ct. at 2409, 2423. ↑

  64. Kisor v. Wilkie, 969 F.3d at 1336-1343. ↑

  65. Id. at 1340. ↑

  66. Id. at 1338-39. ↑

  67. Id. at 1341, 1343. ↑

  68. Nat’l Org. of Veterans’ Advocates v. Sec’y of Veterans Affairs, 981 F.3d 1360 (Fed. Cir. 2020); Disabled American Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077-78 (Fed. Cir. 2017). ↑

  69. Nat’l Org. of Veterans’ Advocates, 981 F.3d at 1376. ↑

  70. Id. ↑

  71. Id. at 1380 (quoting Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1114 (Fed. Cir. 2017) (Dyk, J. dissenting in part and concurring in the judgment)). ↑

  72. Id. at 1365-67. ↑

  73. See id. at 1375, 1382; Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 n.1 (2019). ↑

  74. Nat’l Org. of Veterans’ Advocates, 981 F.3d at 1378. ↑

  75. Id. at 1383, 1386. ↑

  76. Garvey v. Wilkie, 972 F.3d 1333, 1341 (Fed. Cir. 2020). Not long before the Federal Circuit’s decision in Garvey, VA proposed to amend its regulations regarding discharges considered “dishonorable” for purposes of VA benefits eligibility, including a new proposed definition of “willful and persistent misconduct.” Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge, 85 Fed. Reg. 41471 (proposed July 10, 2020). However, the proposed changes would not likely have an impact on Mrs. Garvey’s claims or the Federal Circuit’s decision. ↑

  77. Garvey, 972 F.3d at 1334. ↑

  78. Id. at 1335, 1337; 38 U.S.C. § 5303. ↑

  79. Garvey, 972 F.3d at 1337; 38 U.S.C. § 101(2). ↑

  80. Garvey, 972 F.3d at 1337-41. ↑

  81. Id. ↑