# Morton v. West

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

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## Morton v. West, 12 Vet. App. 477 (1999) {#8205539}

*12 Vet. App. 477*

_Morton v. West, 12 Vet. App. 477, decided 1999-07-14._

FARLEY, Judge:
This is an appeal from a September 6, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) which determined that the appellant’s claims for service connection for hearing loss; varicose veins; a back disorder other than scoliosis of the thoracolum-bar vertebrae; and shortening or lengthening of the right upper extremity were not well grounded. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the decision of the BVA.

I. BACKGROUND

The appellant, Jack W. Morton, served in the U.S. Army from July 1943 to November 1946. Record (R.) at 157. Although his preinduction physical noted a healed left eardrum perforation (R. at 23), his service medical records are silent with respect to any of the claimed disabilities (R. at 13-148,151).

Over the years, the appellant was seen for numerous disabilities and granted service connection for several. On November 16, 1946, the day after discharge from service, he was rated 100% for tuberculosis (TB). In January 1951, he underwent a segmental resection of the anterior segment and a portion of the posterior segment of the right upper lung lobe, and decortication of the right lung. R. at 167. It was noted at the time that the appellant had had “a severe infection of his left middle ear, which was perforated” in infancy. R. at 166. By 1963, the TB rating had been reduced to 0%. R. at 169. An August 1983 VA examination noted an oval scar on the left eardrum but no hearing loss. R. at 187. An April 1984 VA examination noted varicose veins in the right leg. A June 1984 rating decision granted service connection for partial resection of the right 6th and 7th ribs (rated 10%), granted service connection for postoperative residuals from the segmental resection of the upper lobe and right lung decortication (rated as noneompensa-ble), increased the TB rating to 10%, and denied service connection for varicose veins and otitis media. R. at 211-12. An August 1989 VA examination found no shortening of the right upper extremity versus the left. R. at 222. A May 1991 VA examination found varicose veins in both legs. A perforated left tympanic membrane was noted along with associated hearing loss which the examiner thought might be service connected,

because this apparently was incurred in the U.S. Navy [sic] since he was aboard *479ship when the perforation occurred and it happened when artillery guns aboard ship were fired in his vicinity.... While in the Navy [sic], he also had varicose veins but it has never been adjudicated.

R. at 247. The examination also found that the left upper extremity was one-half inch shorter than the right and stated: “Therefore, it is not the right upper extremity that is shortened, but the left one.” R. at 248. An x-ray report noted moderate degenerative changes of the lower lumbar spine and associated slight anterior pseudo-spondylolisthe-sis of L4 over L5. R. at 251.

In October 1991, a left underlay tympano-plasty with mastoidectomy was performed. R. at 303-07. August 1994 x-rays noted a mild degree of right sided scoliosis of the thoracic spine. R. at 511. In May 1995, the VA regional office (RO) granted service connection for scoliosis of the thoracolumbar vertebrae as secondary to the service-connected segmental resection of the right upper lobe and denied service connection for hearing loss. R. at 519-25.

In the decision on appeal, the BVA found no evidence of nexus with respect to the claims for hearing loss and back disability. Regarding the claim for varicose veins, the BVA found no evidence, other than the appellant’s own testimony, that the condition existed in service and no evidence linking the appellant’s condition to that period. It also noted that no medical evidence was presented to suggest that the shortening or lengthening of the right upper extremity was due to the surgery the appellant had for his service-connected TB, as he was contending.

The appellant, through counsel, did not address in his brief whether these claims are well grounded; in fact, he appears to concede they are not. See Appellant’s Brief at 6 (admitting that “there may be no medical evidence of nexus connecting the current disabilities with those arising on active duty”). Rather, the appellant argues that VA is required to assist him by fully developing the facts pertinent to his claim even though he has yet to submit a well-grounded claim. He purports to find support for this requirement in the following: 38 C.F.R. §§ 3.103(a), 3.159(a); VA Adjudication Procedure Manual, M21-1 (Manual M21-1), Part III, para. 1.03(a) and Part IV, para. 2.10(f); and policies set forth in two documents: a May 24, 1996, letter from the director of the VA Compensation and Pension Service to the VA Regional Officers and VBA Circular 21-94-2, Change 2, Appendix A (C & P policy). The appellant also requests a remand pursuant to Stegall v. West, 11 Vet.App. 268 (1998), asserting that the RO failed to comply with an earlier BVA remand.

The Secretary responds that the appellant has abandoned the well-grounded claims issue because it had not been briefed. In the alternative, he argues that even if the Court deems the issue to have been pressed on appeal, the claims should be found not well grounded because the requisite nexus evidence is missing. He further argues that the “duty to assist a not-well-grounded claim” issue was not raised below and should not be considered by the Court in the first instance. He adds that the claim referenced by the appellant in his Stegall argument was the subject of a different BVA decision that the appellant’s counsel expressly excluded from this appeal when he filed an amended Notice of Appeal. The appellant has not filed a reply brief.

As the Secretary pointed out and a review of the record confirms, the appellant’s argument under Stegall was based upon a claim that was not raised in the BVA decision under appeal; accordingly, a remand is not warranted. See 11 Vet.App. at 270. Further, since the appellant virtually concedes that his claims are not well grounded and, in any event, provides no argument in his brief to the contrary, we find the issue abandoned. Lalonde v. West, 12 Vet.App. 377, 381 (1999) (“because the appellant has not presented any argument contrary to the Board’s finding on that issue, he has actually abandoned that issue on appeal.”); Kingston v. West, 11 Vet.App. 272, 272 (1998); Phillips v. Brown, 10 Vet.App. 25, 27 (1997) (claims not briefed are abandoned); Bucklinger v. Brown, 5 Vet.App. 435 (1993).

II. ANALYSIS

The appellant’s entire appeal rests on the argument that, by virtue of various regula*480tions, Manual M21-1 provisions, and C & P policy concerning the development of claims, VA has taken upon itself a duty to assist this appellant even though he has not submitted a well-grounded claim. Pretermitting the question of whether the Court could or should consider arguments not raised to or adjudicated by the Board, a matter currently pending before the Court in Stuckey v. West, No. 96-1373, the Court will address — and reject — the merits of the appellant’s substantive arguments.

This Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that 38 U.S.C. § 5107(a) requires that, if a well-grounded or plausible claim has not been submitted, there is no duty on the part of VA to assist in the claim’s full development. Section 5107 provides:

(a) Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim.

(b) When, after consideration of all the material and evidence of record in a case before the Department [of Veterans Affairs] with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.

38 U.S.C. § 5107(a) (emphasis added).

Based on the explicit statutory language, structure, and purpose, see Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), this Court has discerned a Congressional intent to create a chronological process whereby appellants who have met the requisite burden, and only those appellants, are entitled to the benefit of VA’s duty to assist. Consistently, we have so held. See Allday v. Brown, 7 Vet.App. 517, 526 (1995); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); see also Elkins v. West, 12 Vet.App. 209 (1999)(en banc); Schroeder v. Brown, 6 Vet.App. 220 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993). In Grivois v. Brown, 6 Vet.App. 136, 139 (1994), we specifically held:

Section 5107(a) of title 38 unequivocally places an initial burden on a claimant to produce evidence that the claim is well grounded or, as we have held, is plausible. See 38 U.S.C.[ ] § 5107(a) (1991); Grottveit [, 5 Vet.App. at 92]; Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). This statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which — as well grounded — require adjudication. This policy is starkly clear when one reads the specific reiteration of that requirement in § 5107(b) of title 38. 38 U.S.C.[ ] § 5107(b) (1991).... Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones.

In Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998), the Federal Circuit expressly upheld our interpretation of section 5107(a) and the “chronological relationship” it establishes. In so doing, it rejected the appellant’s argument that the Secretary’s duty to assist is not conditional upon the submission of a well-grounded claim. Upon reviewing the statutory provision, the Federal Circuit construed the “such a claimant” language of section 5107(a) as having its antecedent in the preceding sentence. It also found that the last sentence of section 5107(b), which reprises the “burden” of section 5107(a), constituted support for the proposition that the duty to present a well-grounded claim is the claimant’s alone. The Federal Circuit dismissed *481the appellant’s argument that the legislative history of section 5107 indicates that Congress intended to codify 38 C.F.R. §§ 3.102 and 3.103, agency regulations which he suggested represented the longstanding practice on the part of VA to provide unconditional assistance. Id. at 1467-68. Finding the legislative history not to bear directly on the statutory construction in question, the Federal Circuit held “that § 5107(a) requires a claimant to submit and establish a well grounded claim before the [ ]VA is required to provide assistance to a claimant in developing the facts underlying his or her claim.” Id. at 1469.

In addition, the Federal Circuit found “all the other arguments made by Epps ... to be unpersuasive.” Id. at 1470. Among those “other arguments” were arguments specifically premised upon the claims development provisions of 38 C.F.R. § 3.103 (Appellant’s Brief (Br.), passim; Reply Br. of Appellant at 1-2); and 38 C.F.R. § 3.159 (Appellant’s Br. at 24); and M21-1, Part III, Change 50, Chap. I, ¶ 1.01 (Feb. 23, 1996) (Appellant’s Br. at 30-31). Moreover, the Secretary also specifically raised 38 C.F.R. § 3.159, arguing that “[s]ection 3.159 of title 38, Code of Federal Regulations, states that VA will assist claimants by requesting pertinent evidence ... and the regulation does not expressly limit such assistance to cases where the claimant has established that the claim is well grounded.” Secretary’s Br. in Epps, No. 97-7014, at 20-21. In affirming this Court’s interpretation of 38 U.S.C. § 5107, the Federal Circuit necessarily found that argument by the Secretary, along with the “other arguments” advanced by the appellant, “unpersuasive.”

Notwithstanding the Federal Circuit’s holding in Epps, the appellant brings yet another challenge to this Court’s and the Federal Circuit’s interpretation of § 5107 based upon regulations, provisions of Manual M21-1, and C & P policy statements on claims development. Specifically, the appellant relies upon the following language: (1) “Before a decision is made about a claim being well grounded, it will be fully developed” (Manual M21-1, Part III ¶ 1.03(a) at 7-8); (2) “[Although VA’s duty to assist does not apply until a well-grounded claim is submitted, it is the policy of the Compensation and Pension Service as stated in Part III, para. 1.03(a) that a decision will not be made concerning well groundedness until the claim has been fully developed” (C & P policy); (3) “[I]t is the obligation of VA to assist a claimant in developing the facts pertinent to the claim ...” (38 C.F.R. § 3.102); and (4) “Although it is the responsibility of any person filing a claim ... which is] well grounded ... the [VA] shall assist a claimant in developing the facts pertinent to his or her claim” (38 C.F.R. § 3.159).

The Federal Circuit has definitively held that “there is nothing in the text of § 5107 to suggest that the [ JVA has a duty to assist a claimant until the claimant meets his or her burden of establishing a ‘well-grounded’ claim” and “that § 5107(a) requires a claimant to submit and establish a ‘well-grounded’ claim before the [ JVA is required to provide assistance to a claimant in developing the facts underlying his or her claim.” Epps, 126 F.3d at 1469. The issue, therefore, is whether the Secretary, by regulation, Manual, and/or C & P policy can and has eliminated the condition precedent placed by Congress upon the inception of his duty to assist. The answer: No.

A. The Regulations, Manual M21-1 Provisions, and the C & P Policies are Interpretive and do not Create Enforceable Substantive Rights

The Administrative Procedures Act (APA) defines a rule as “the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy. ...” 5 U.S.C. § 551(4) (1988). As we noted in Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990),

Rules fall into two main categories: substantive or interpretive. “The particular label placed upon it by the [agency] is not necessarily conclusive, for it is the substance of what the [agency] has purported to do and has done which is decisive.” Columbia Broadcasting System v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) (citations omitted.) A rule is substantive in nature when it “has *482the force of law and narrowly limits administrative action.” Carter v. Cleland, 643 F.2d 1, 8 (D.C.Cir.1980); Guardian Federal Savings & Loan Ass’n v. FSLIC, 589 F.2d 658, 666-67 (D.C.Cir.1978). In contrast, an interpretive rule, “is one that merely clarifies or explains an existing rule or statute.” Carter, 643 F.2d at 8; Guardian Federal Savings & Loan, 589 F.2d at 664; see also Pickus v. United States Board of Parole, 507 F.2d 1107, 1113 (D.C.Cir.1974). “Naturally there are instances when it is difficult to classify a given rule as substantive or interpretive.” Guardian Federal Savings & Loan, 589 F.2d at 665.

The distinction between a substantive rule and an interpretive one can be significant for two reasons. First, substantive rules are subject to the general requirement of prior notice and opportunity to comment (see 5 U.S.C. § 553) while “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” are excepted (see 5 U.S.C. § 553(b)(A)). Second, substantive rules may confer enforceable rights, while internal guidelines and interpretive statements of a federal agency, that are mandated neither by a statute nor by the Constitution, cannot confer substantive rights on a claimant. U.S. v. American Prod. Indus., Inc., 58 F.3d 404, 407 (9th Cir.1995) (“Only regulations having the ‘force and effect’ of law can create a private right of action [citations omitted].”); Akin v. Office of Thrift Supervision, 950 F.2d 1180, 1186 n. 7 (5th Cir.1992) (“the policy declarations are but guidelines which even the issuing agency is not bound to unerringly follow.”); U.S. v. Craveiro, 907 F.2d 260, 264 (1st Cir.1990) (“internal guidelines of a federal agency, that are not mandated by the statute or the constitution, do not confer substantive rights on any party,” citing U.S. v. Michaud, 860 F.2d 495, 497 (1st Cir.1988)); see also I Kenneth Culp Davis & Richard PieRce, Jr., AdminisTRAtive Law Treatise 6.1 at 234 (3d ed.1994) which explains:

[A]n agency has the power to issue binding legislative rules only if and to the extent Congress has authorized it to do so.... [A] legislative rule can impose distinct obligations on members of the public in addition to those imposed by statute, as long as the rule is within the scope of rulemaking authority conferred on the agency by statute. By contrast, an interpretive rule cannot impose obligations on citizens that exceed those fairly attributable to Congress through the process of statutory interpretation.

See also Syncor International Corp. v. Shalala, 127 F.3d 90, 94 (D.C.Cir.1997) (“[T]he crucial distinction between [a substantive rule] and [a policy statement and interpretive rule] is that a substantive rule modifies or adds to a legal norm based on the agency’s own authority. That authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking.”).

The foreword to Manual M21-1 states: “[T]his manual provides procedures for the adjudication of claims for compensation, pension ...” It goes on to address the content of the different parts of the Manual which include the responsibilities of the staff, instructions for specific ratings, and explanations of procedures. In so doing, Manual M21-1 provides guidance to the administrative adjudicators who act under the direction of the authority of the Secretary. In large part, then, Manual M21-1 is filled with internal housekeeping matters. While the agency’s characterization of a rule is not binding, it can be “an important factor in determining whether a rule is interpretive” rather than substantive. Warder v. Shalala, 149 F.3d 73, 80 (1st Cir.1998).

When the Secretary promulgates guidelines within the scope of his authority to implement legislation, he can intentionally (or perhaps even unintentionally) create substantive rights that must and will be enforced by the Court. Indeed, substantive rules affecting rights can even be found in a “procedural” manual and, as the appellant correctly notes, this Court has found a number of substantive rules in the M21-1. See, e.g., Fugere, supra; Moreau v. Brown, 9 Vet.App. 389 (1996); Hayes v. Brown, 5 Vet.App. 60 (1993); Hamilton v. Derwinski, 2 Vet.App. 671 (1992) (en banc). In Fugere, we said:

*483Paragraph 50.13(b) did not merely clarify or explain an existing rule or statute. It has “the force of law and narrowly limits administrative action” in that it prescribes what action must be taken in the initial levels of adjudication. Paragraph 50.13(b) regulates the awarding of benefits for hearing defects in a particular instance, i.e., when a change in benefits would result only from the implementation of a new rating schedule the old criteria must be applied. Paragraph 50.13(b) was more than a mere procedural guideline; it affected a substantive right and its placement in a procedural manual cannot disguise its true nature as a substantive rule. We hold that paragraph 50.13(b) fits well within the statutory (5 U.S.C. § 551(4)) and common law definitions of a substantive rule.

Fugere, 1 Vet.App. at 107. We held further that, because the Manual M21-1 provision constituted a substantive rule, it could not be rescinded without affording APA due notice and an opportunity to be heard. Id. at 108; see generally Walters v. National Assoc. of Radiation Survivors, 473 U.S. 305, 333, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Accordingly, VA’s purported rescission of the manual provision was set aside.

Fugere, however, involved a provision granting a substantive right because its application directly affected whether a veteran’s disability was to be retained or reduced. Here, the Manual M21-1 provisions and C & P policy on the development of claims relied upon by the appellant are purely interpretive. Together they constitute only “[a]n interpretative statement [which] simply indicates an agency’s reading of a statute or a rule ... [and does] not intend to create new rights or duties, but only reminds affected parties of existing duties.” Paralyzed Veterans of America v. West, 138 F.3d 1434, 1436 (Fed.Cir.1998) (quoting Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C.Cir.1993).) The Manual M21-1 provisions and C & P policy do not speak to whether a specific disability is to be granted or denied; nor do they impinge upon a benefit or right enjoyed by the veteran as in Fugere. There is no question that the provision at issue in Fugere was derived from the Secretary’s authority pursuant to statutory law. See 38 U.S.C. § 1155 (“The Secretary shall adopt and apply a schedule of ratings or reductions in earning capacities for specific injuries or combination of injuries.”). Indeed, while the Manual M21-1 provision at issue in Fugere derived from the Secretary’s statutory authority and responsibility to define disabilities and specify their degrees, the regulations, Manual M21-1 provision, and C & P policy relied upon by this appellant are, at most, administrative directions to the field containing guidance as to the procedures to be used in the adjudication process. As in Akin, supra, they are but policy declarations which, in turn, “are but guidelines which even the issuing agency is not bound to unerringly follow.”

Another provision found substantive by the Court is Manual M21-1, part VI, ¶7.466, which provides,

If the evidence shows that the veteran engaged in combat with the enemy and the claimed stressor is related to combat, no further development for a stressor is necessary. ... If the claimed stressor is not combat related, a history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke symptoms in everyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important [that] the stressor be described as to its nature, severity and date of occurrence.

Hamilton, 2 Vet.App. at 674; see also Moreau and Hayes, both supra. This provision replaced Manual M21-1, part I, ¶ 50.45, which had not required that an appellant’s description of the claimed stressor be accepted as true unless found to be inconsistent with his circumstances of service. In Hamilton, we stated, “Substantive rules, those which have the force of law and narrowly limit administrative action, in the [Manual M21-1] are equivalent of Department regulations.” 2 Vet.App. at 675. We thus held that a remand was warranted to apply the change in the substantive rule. Id.

*484The role of both provisions, the original and the one replacing it, is to define the evidentiary threshold for service connection for post-traumatic stress disorders and they have the force of law because they are promulgated under the Secretary’s authority to define disabilities and because they create rights which are entirely consistent with and in furtherance of 38 U.S.C. § 1154(b) which provides:

In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.

As in Fugere, swpra, these provisions dictate how benefits will be awarded for specific disabilities and are based upon the Secretary’s authority to define disabilities. See 38 U.S.C. § 1155. In contrast, the Manual provisions and C & P policies on claim development do not create rights with respect to specific disabilities. Rather, they can serve only to interpret 38 U.S.C. § 5107 and “[i]f the rule is based on specific statutory provisions, and its validity stands or falls on the correctness of the agency’s interpretation of those provisions, it is an interpretive rule.” United Technologies Corp. v. U.S. E.P.A., 821 F.2d 714, 719-20 (D.C.Cir.1987).

B. Interpretive Provisions in Regulations, Manuals, and Agency Policies Which are Contrary to Statutes are Entitled to No Deference

Apart from the question whether interpretive rules create enforceable rights, which they do not, there remains the question of whether agency rules are entitled to deference. In Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court stated,

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines that Congress has not directly addressed the precise question at issue ... the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

See also Smiley v. Citibank, 517 U.S. 735, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (applying Chevron, the Supreme Court upheld the Comptroller of the Currency’s definition of “interest” as used in the National Bank Act); Fort Stewart Schools v. FLRA, 495 U.S. 641, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990). In this instance, this Court and the Federal Circuit have held that, with respect to § 5107, “the intent of Congress is clear [and] that is the end of the matter; for the Court as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, supra.

The Supreme Court has consistently held that for an agency’s interpretation or action to be entitled to any deference or judicial enforcement, it must be consistent with the framework of a statute. See FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981) (“[C]ourts are the final authorities on issues of statutory construction. They must reject administrative constructions, whether reached by adjudication or by rule-making, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.”). See also SEC v. Sloan, 436 U.S. 103, 118, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978) (SEC’s construction of Securities Exchange Act of 1934, in favor of allowing it to suspend trading in certain stock, was found to be inconsistent with the statutory mandate); FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-46, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973) (agency may not “bootstrap itself into an area into which it has no *485jurisdiction by repeatedly violating its statutory mandate”); NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) (courts are “not obligated to stand aside and rubberstamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the Congressional policy underlying a statute.”); FTC v. Colgate Palmolive, 380 U.S. 374, 385, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965) (courts are final authorities on statutory construction).

In Brown v. Gardner, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994), a case directly on point, the Supreme Court held that a longstanding VA regulation was not entitled to deference. The Supreme Court said: “A regulations’s age is no antidote to clear inconsistency with a statute, and the fact, again, that [38 C.F.R.] § 3.358(c)(3) flies against the plain language of the statutory text, exempts courts from any obligation to defer to it.” Id. at 122, 115 S.Ct. 552. This Court, in Boyer v. West, 12 Vet.App. 142 (1999), recently came to a similar conclusion. In Boyer, the appellant had bilateral hearing loss but was not totally deaf in both ears. Under the relevant statutes, his non-service-connected hearing loss would be treated as service-connected (and hence entitle him to a higher rating) only if the appellant were totally deaf in both ears. The appellant argued that the Secretary, by virtue of a provision of the Manual M21-1, Part VI, ¶ 8.08(b)-(e), had assumed the duty of considering a non-service-eonnected disability when assigning a rating. The Court rejected the appellant’s argument and held that although a Manual M21-1 provision “might attempt to authorize a rating for non-service-connected hearing short of total deafness in both ears, such a provision would be inconsistent with the framework of 38 U.S.C. §§ 1110 and 1131 and would be unlawful.” Id. at 144 (emphasis supplied).

Any — and every — agency construction which is contrary to statute would necessarily be contradictory, impermissible, and not entitled to judicial deference or enforcement. See Chevron, FEC, Gardner, and Boyer, all supra. This is true regardless whether the rule is deemed substantive or interpretive. See Hamlet v. United States, 63 F.3d 1097, 1105 (Fed.Cir.1995) (A provision of a personnel manual “is a regulation entitled to the force and effect of law if ... the provision does not contravene a statute.”). Indeed, even if such consistency were not mandatory as a general rule, it still would be required here by the opening words of section 5107(a) itself: “Except when otherwise provided by the Secretary in accordance with the provisions of this title .... ” (Emphasis added.) It would be ultra vires for the Secretary of Veterans Affairs, in the face of the affirmative commands of title 38, to ignore limitations placed by Congress upon his operations. “In the American system, government functionaries are entitled to exercise only such powers as are conferred on them, expressly or impliedly, by positive law.” Nor-MAN J. SINGER, SUTHERLAND ON STATUTORY Construction § 65.01 (5th ed.1992); see also 31 U.S.C. § 1341(a) (The Anti-Deficiency Act). Here, the interpretation of the claims development procedures of the referenced regulations, Manual M21-1, and the C & P policy urged upon us by the appellant stands in direct contravention of the command of 38 U.S.C. § 5107. To the extent that they may be read to require or permit the Secretary to assist a claimant who has not submitted a well-grounded claim pursuant to § 5107(a), such a reading would “[fly] against the plain language of the statutory text [and] exempt ] courts from any obligation to defer to it.” Gardner, 513 U.S. at 122, 115 S.Ct. 552.

III. CONCLUSION

This Court and the Federal Circuit have interpreted 38 U.S.C. § 5107 as conditioning the Secretary’s duty to “assist ... in developing the facts pertinent to the claim” upon the submission by the claimant of well-grounded claim. Although the C & P “full development” policy directive was issued four months after this Court’s decision in Grivois, we can only assume that this action was inadvertent or, at worst, inattentive, for neither the Secretary nor this Court is free to ignore a condition precedent established by Congress. Congress, of course, can choose to change or eliminate the well-grounded claim requirement altogether. Indeed, it is possible that after evaluating such consider*486ations as fairness, equity, and the personnel, facility, and financial expenditures which would be required, Congress might well opt for requiring the Secretary to assist and examine all veterans, regardless of whether well-grounded claims have been submitted. But that balancing process is the responsibility of the legislative branch, not this Court. It is our responsibility to interpret existing law and to apply it to the record before us. Having done so, we can only conclude that under section 5107, absent the submission and establishment of a well-grounded claim, the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. Accordingly, any perceived or actual failure by the Secretary to render assistance in the absence of a well-grounded claim cannot be legal error. For these reasons, the September 6, 1997, decision of the BVA must be and is AFFIRMED.

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## Morton v. West, 13 Vet. App. 205 (1999) {#8205599}

*13 Vet. App. 205*

_Morton v. West, 13 Vet. App. 205, decided 1999-07-28._

ORDER

PER CURIAM:
On July 14, 1999, in a panel opinion, the Court affirmed the Board of Veterans’ Appeals decision that determined that the appellant’s claims for service connection for hearing loss: varicose veins; a back disorder other than scoliosis of the thora-columbar vertebras; and shortening or lengthening of the right upper extremity were not well grounded. Morton v. West, 12 Vet.App. 477 (1999). Pursuant to the Court’s Internal Operating Procedures (IOP) at V.(a)(3), a judge requested en banc consideration.

On consideration of the foregoing, and it appearing that a decision of the full Court is not necessary either to ensure uniformity of decision or to resolve a question of exceptional importance (see IOP at V.(b)), it is

ORDERED that en banc consideration is DENIED.

---

STEINBERG and KRAMER, Judges,
dissenting:

Judge Steinberg called for, and we voted for, a full Court decision in Morton v. West, 12 Vet.App. 477 (1999) because the panel opinion appears to be inconsistent with certain current caselaw (ignored by the panel), misinterprets 38 U.S.C. § 5107(a), and mischaracterizes the effect of the Foreword to the VA Adjudication Procedure Manual, M21-1, [hereinafter Manual M21-1], and because the issue involved is one of exceptional importance.1 Moreover, the Court’s issuance of this opinion prior to oral argument in Stuckey v. West, U.S. Vet.App. No. 96-1373 (oral argument scheduled for July 29, 1999), is most inadvisable, putting the Court in the apparent position of proceeding without regard to the contributions of the parties and amici in that case where the matter was presumably fully briefed at the direction/invitation of the Court. For the reasons set forth below, we believe that the opinion’s analysis is incomplete and unpersuasive.

I. Analysis

A. Contrary Court Caselaw

The panel opinion ignores two precedents of this Court that are inconsistent with key portions of the Morton opinion’s analysis.2 In Patton v. West, the Court held that “[t]he [Board of Veterans’ Appeals (Board or BVA) ] cannot ignore provisions of the Manual M21-1 relating to PTSD [ (post-traumatic stress disorder) ] that are favorable to a veteran when adjudicating that veteran’s claim”, Patton, 12 Vet.App. 272, 282 (1999) (citing Cohen (Douglas) v. Brown, 10 Vet.App. 128, 138-39 (1997), Hayes v. Brown, 6 Vet.App. 66, 67 (1993), and Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990), aff'd, 972 F.2d 331 (Fed.Cir.1992)), and that, therefore, by vir*206tue of the provisions in the Manual M21-1, Part III, ¶ 5.14c (8) and (9), “the RO is responsible for assisting the claimant in gathering, from sources in addition to in-service records, evidence corroborating an in-service stressor, by sending a special letter and questionnaire, by carefully evaluating that evidence including behavior changes, and by furnishing a clinical evaluation of behavior evidence”, Patton, supra. The Manual M21-1 provisions enforced by the Court there were not made contingent on the submission of a well-grounded claim. The Manual M21-1 duty-to-develop provisions at issue in Morton are written in very directory terms3 and are certainly no less substantive than those in Patton. If Hamilton (Stanley) v. Derwinski, 2 Vet.App. 671 (1992), which appears to be the first precedential opinion in which this Court held that the Manual M21-1 PTSD provisions were substantive rules that were binding on the BVA, and which the Morton opinion does discuss, and Hayes, Cohen (Douglas), and Patton, were wrongly decided, that is a matter for consideration by the full Court.

Perhaps of greatest significance, the panel opinion fails to address a clear holding in this Court’s opinion in Sarmiento v. Brown, 7 Vet.App. 80 (1994), that appears to bear directly on the question before the Court. In Sarmiento, the Court sustained and enforced against the Secretary a mandatory regulatory duty that the Secretary had adopted in 38 C.F.R. § 3.203(3) (1998). The Court stated: “[T]he Secretary has taken upon himself an affirmative non-statutory duty to ‘request verification of service from the service department’ ” under certain circumstances on behalf of “one claiming entitlement [to Department of Veterans Affairs (VA) benefits who] fails to submit qualifying evidence of service” and who thus has not submitted a well-grounded claim. Sarmiento, 7 Vet.App. at 85. The inconsistency of the Court’s section 5107(a) analysis in Morton with its analysis in Sarmiento is illustrated most clearly by the following quote from Sarmiento:

The voluntarily-assumed regulatory duty to seek evidentiary verification is couched in mandatory, not discretionary terms and, unlike 38 U.S.C. § 5107(a) which only obligates the Secretary to assist ‘such a claimant’ (emphasis added), the regulation does not make the Secretary’s evidentiary duty contingent upon the submission of a well-grounded claim.

Ibid. The viability of this Sarmiento holding has never been questioned by any opinion of this Court.

Moreover, in Sarmiento, the Court applied a regulation that required claims development activity outside the VA on behalf of one who that opinion classified, albeit incorrectly in our view,4 as a non-claimant, one who had “never attained the status of claimant, [and who] never [even] submitted a claim, well grounded or other*207wise,” and as to whom the Court stressed, “the Secretary was neither obligated to determine whether [his] claim was well grounded nor under a statutory duty to assist him in the development of evidence.” Sarmiento, 7 Vet.App. at 83. If the Secretary is free to impose upon the VA an obligation to develop the nonclaim of a nonclaimant, it is questionable for Morton to hold, based upon the reasons it articulates, that 38 U.S.C. § 5107(a) prohibits the Secretary from voluntarily imposing on VA an obligation to assist “real” VA claimants by assisting them in developing their claims as the Manual M21-1 provisions at issue here purport to do.

B. Attempts to Distinguish This Court’s Caselaw

As pointed out in part II.A, above, the Morton panel ignores Patton and Sar-miento, supra, and their significance to this case. The panel attempts to distinguish Fugere, supra, as a case that “involved a provision granting a substantive right because its application directly affected whether a veteran’s disability was to be retained or reduced”, whereas in Morton, the panel continues, the Manual M21-1 provisions at issue only “‘inter-prete ]’ ” section 5107(a). Morton, 12 Vet.App. at 483 [hereinafter Morton at 483] (quoting Paralyzed Veterans of America v. West, 138 F.3d 1434, 1436 (Fed.Cir.1998)). The opinion also notes the following about the VA provisions at issue in Fugere: “[Those Manual M21-1 provisions] dictate^] how benefits will be awarded for specific disabilities and are based upon the Secretary’s authority to define disabilities. In contrast, the [Manual M21-1 provisions at issue in Morton ] ... do not create rights with respect to specific disabilities.” Morton at 483-84. The panel opinion, however, sets forth no rationale for its implicit holding that VA’s provisions are substantive only when they affect specific disabilities rather than all disabilities, a distinction that appears, at bottom, to be one between provisions that affect only a small class of claimants rather than all claimants. We fail to see any basis in logic or law for the notion that the narrowness of administrative discretion somehow depends on the extent to which only a specific disability is addressed, that is, the size of the class affected. The test that the Morton opinion appears to apply, “narrowly limits administrative action”, ibid., to determine whether a provision is a substantive rule, is taken from Fugere, 1 Vet.App. at 107. It is clear from Fugere and the case from which it ultimately derived that test, Guardian Federal Savings & Loan Ass’n v. FSLIC, 589 F.2d 658, 666-67 (D.C.Cir.1978), that the amount of discretion afforded to agency adjudicators by a “substantive” (as opposed to an “interpretive”) rule, has nothing to do with the size of the class affected by that rule.5 *208Similarly, the panel states that the Manual M21-l-duty-to-develop provisions at issue in Morton do not “speak to whether a specific disability is to be granted or denied [service connection]”. Morton at 483. But the provisions sustained as substantive by the Court in Patton and Hamilton, both supra, deal with the manner of VA adjudication of a PTSD claim — they neither guarantee nor deny service connection for a specific disability — and they were considered regulatory and applied by the Court nonetheless.

C. Correct Criteria to Apply

Against this backdrop, we wish to make clear that we accept the conclusion in Morton, although not the rationalization presented for it, that Fugere and Hamilton do not control whether the Manual M21-1 provisions at issue in Morton are substantive rules. The Manual M21-1 provisions involved in Fugere and Hamilton provided specific directives in connection with the award of service connection that allowed for no exercise of discretion.6 However, the provisions involved in the opinions ignored by the Morton opinion, Patton and Sarmiento, both specifically deal with obligations that VA has specifically imposed upon itself to develop claims. We believe that those cases pose far more difficulty in terms of the result reached in Morton, and we thus find the Court’s avoidance of even discussing them to be inexplicable.

In Guardian Federal, the U.S. Court of Appeals for the D.C. Circuit set forth some pertinent guidance that this Court would be well advised to heed and apply. It stated first, citing much authority:

[A]n interpretative rule is merely a clarification or explanation of an existing statute or rule. The Attorney General’s Manual defines interpretative rules as “rules or statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.”

Id. at 664 (footnotes omitted). The court expounded on the “limits administrative discretion” concept as follows:

The mere existence of some discretion is not sufficient, although it is necessary, *209for a rule to be classified as a general statement of policy. Thus, stringent substantive commands are not removed from section 553 because they have some provision for discretionary waiver. A matter of judgment is involved in distinguishing between rules, however discretionary in form, that effectively circumscribe administrative choice, and rules that contemplate that the administrator will exercise an informed discretion in the various cases that arise.

Id. at 667 (footnote omitted; emphasis added).

The above criteria seem sensible ones to apply in attempting to determine whether the Manual M21-1 provisions at issue in Morton qualify as substantive rules, especially in view of the Foreword to the Manual M21-1, which the panel opinion here quotes incompletely and thereby seriously understates the extent to which the Manual M21-1 is intended to be binding. That Foreword concludes by declaring: “Deviation from any of the prescribed procedures without authorization of the Chief Benefits Director is prohibited.”7 This hardly sounds like what the Morton panel would characterize as “at most, administrative directions to the field containing guidance as to procedures to be used in the adjudication process.” Morton at 483 (emphasis added). Thus, based on its analysis, the panel’s attempt to classify the Manual M21-1 provisions at issue as merely interpretive of section 5107(a) appears to be purely conclusory.

Application of the above Guardian Federal guidelines does, however, suggest to us a distinction that might be meaningful in terms of determining whether the case-development Manual M21-1 provisions at issue in Patton and Sarmiento narrowly limit administrative discretion whereas those case-development Manual M21-1 provisions at issue in Morton do not. That is, the developmental obligations estab*210lished in the Patton /Sarmiento Manual M21-1 provisions were extremely specific in terms of the steps required to be taken. See Patton, 12 Vet.App. at 278-80 (setting forth text of Manual M21-1 provisions stating “particularized requirements” as to sending and content of development letter to PTSD claimants); Sarmiento, 7 Vet.App. at 83 (describing 38 C.F.R. § 3.203 (1993) regulatory requirement for VA to seek verification of service from service department without any reference to requirement of prior submission of well-grounded claim). Indeed, such a distinction, derived from the extent to which the Manual M21-1 provision leaves broad discretion to the adjudicator to determine the case-development steps, would also cover Hamilton, where the Manual M21-1 provision at issue provided definitively that no further development was to be undertaken under the circumstances, thus leaving no discretion in that matter to be exercised by the adjudicator.8

We are not contending that the application of the above Guardian Federal guidelines is a matter that resolves the issue in this case clearly and unequivocally. Rather, we believe that the Court has proposed distinctions that have no basis in the authority cited for them and that the questions here should be subjected to consideration at the full Court level because of the importance of the issue and because of the existence of the caselaw in Patton and Sarmiento, both supra, that the Court ignores.

D. Analysis of Section 5107(a)

Even if the deficiencies described in parts I.A., B., and C., above, were not present, the Morton opinion’s interpretation of section 5107(a) cannot withstand scrutiny. The panel purports to conclude that the Secretary’s “construction” of section 5107(a), as contained in the Manual M21-l-duty-to-develop provisions, “stands in direct contravention of the command of 38 U.S.C. § 5107” if interpreted to impose case-development duties as to claims that are not well grounded. Morton at 585. The panel’s reasoning is circular. Subsection (a) provides:

Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 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(a). The panel purports to “hold”9 that the Secretary’s promulgation of the Manual M21-1 provisions is contrary to section 5107(a) because it is not “in accordance with the provisions of this title” on the ground that it provides otherwise than section 5107(a) itself, the opening phrase of which is “[ejxcept when otherwise provided by the Secretary”. Such a line of analysis is a textbook tautology. The Morton analysis reads out entirely the “Except” clause. Under the plain meaning of section 5107(a), the Secretary is authorized to “provide otherwise” than what is provided for in section 5107(a). Moreover, to the extent that the panel would “hold” that section 5107(a) specifically precludes the Secretary from eliminating the “condition precedent” of well groundedness, the panel opinion has not demonstrated, but only declared, that such a “condition precedent” is established as an absolute matter by section 5107(a).

In this regard, we believe that the panel opinion misconstrues the opinion of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Epps v. Gober,10 *211by stating that Epps requires the result that the panel has reached in Morton. Morton at 5-7. To the contrary, the Federal Circuit never addressed the “Except” clause in Epps. Rather, its holding was premised only on the language following that clause.11 In addition, merely because the Congress establishes certain mandatory duties by law does not necessarily mean that it has foreclosed the executive from undertaking additional duties, in the exercise of its discretion under other authority, that go beyond those mandated by statute. In section 5107(a), we have the “Except” clause in which Congress expressly envisioned that eventuality, and we sustained just such a self-imposed duty, going beyond section 5107(a), in Sarmiento, supra.

We note, however one possible basis on which the Manual M21-1 provisions at issue might be deemed contrary to the “Except” clause. That clause appears to make an exception only as to the necessity of submitting a well-grounded claim. In essence, then, section 5107(a) could be read as authorizing the Secretary to promulgate a rule indicating under what circumstances a well-grounded claim would not have to be submitted. The Manual M21-1 provisions at issue do not purport to obviate the need to submit a well-grounded claim. Indeed, under these provisions, a well-groundedness determination is to be made ultimately, but only subsequent to development. However, it appears that, under the “Except” clause, only those claimants who have been excluded from the need to file a well-grounded claim would be entitled to the duty to assist, i.e., would be “such a claimant” to whom the duty to assist attaches. In other words, under this possible reading of section 5107(a), there would be a two-step process involved in the exercise of the “unless” clause: (1) Forgiveness of the need to file a well-grounded claim and (2) the resultant triggering of the duty to assist. In contrast, the two-step process provided for by the Manual M21-1 is (1) development pursuant to the duty to assist and (2) a subsequent determination of well groundedness. Thus, it could be argued that the Manual M21-1 process, by triggering a universal duty to assist where the need to file a well-grounded claim has not been excused, is inconsistent with the “Except” clause.

E. Other Authority

The Morton analysis fails to address two sources of authority that, along with the “Except” clause in section 5107(a), may be the basis for the Manual M21-1 duty-to-develop provisions at issue in Morton. First is 38 U.S.C. § 7722(d), which provides:

(d) The Secretary shall provide, to the maximum extent possible, aid and assistance (including personal interviews) to members of the Armed Forces, veterans, and eligible dependents with respect to subsections (b) and (c) and in the preparation and presentation of claims under laws administered by the Department.

38 U.S.C. § 7722(d) (emphasis added). In Smith (Edward) v. Derwinski, this Court concluded that the plain language of section 7722(d) “manifests an explicit congressional intent to create at least one duty owed by the VA to veterans as individuals .... [, that is,] to help prepare and present their claims ‘to the maximum extent possible’ ”. Smith (Edward), 2 Vet.App. 429, 431-32 (1992). The Court has not delineated to date the extent of the section 7722(d) “aid' and assistance ... in the preparation and presentation of claims” individualized duty. Cf. Lewis v. Brown, 8 Vet.App. 287, 290-91 (1995) (concluding that section 7722(c) and (d) “cannot be read to support the appellant’s argument that VA is under a virtually universal duty *212to compare, contrast, and notify” proactively VA non-service-connected “old law” pension recipient so as to determine when it would be in veteran’s best interest, based on annual income declaration, for him to make an election of improved pension benefits).

Second, “[t]he Secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including ... regulations with respect to ... the method of taking and furnishing [proof and evidence] ... to establish the right to benefits under such laws ... [and] the manner and form of adjudications and awards.” 38 U.S.C. § 501(a)(1), (4). See, e.g., Winn v. Brown, 8 Vet.App. 510, 516 (1996) (holding that Secretary’s regulation pertaining to personality disorder “is a valid exercise of the authority granted to the Secretary of Veterans Affairs in 38 U.S.C. § 501”); Camarena v. Brown, 6 Vet.App. 565, 567-68 (1994) (sustaining as valid under section 501 Secretary’s regulation regarding definition of term “under conditions other than dishonorable” in context of whether VA claimant may be considered a veteran under title 38, U.S.Code).

The extent to which these statutory provisions authorize the Manual M21-1-duty-to-develop regulatory provisions and are consistent with the “Except” clause in section 5107(a) is certainly a question requiring greater analysis. However, the Morton opinion includes no analysis whatsoever on this point.

F. Process Problems

Finally, we seriously question the legitimacy of the entire exercise following the “Pretermitting” sentence at the outset of the panel opinion’s analysis. That sentence reads: “Pretermitting the question of whether the Court could or should consider arguments not raised to or adjudicated by the Board, a matter currently pending before the Court in[ ] Stuckey v. West, No. 96-1373, the Court will address — and reject — the merits of the appellant’s substantive arguments.” Morton at 480. To go on to conclude, in essence, that the Manual M21-1 duty-to-develop provisions are invalid where the Court is on the threshold of addressing in Stuckey both whether the Court can consider this issue where it was not raised to the BVA initially12 and, if so, whether the provision is valid, is an inappropriate process as to the Stuckey parties/amici and comes perilously close to rendering an advisory opinion13 by speculating on an issue that may be rendered moot by Stuckey — and to do so as to several matters where there may be contrary precedential caselaw.

Moreover, the inappropriateness of this process goes beyond the Stuckey litigants. In Carbino v. Gober, the Court pointedly declined to consider the same Manual M21-1 provisions being deflated here. Carbino, 10 Vet.App. 507, 510 (1997). One ground articulated there was that those provisions were first raised to the Court in the appellant’s reply brief. However, the Court in Carbino went out of its way to point out: “Our declination is also based on the belief that the Acting Secretary, the Board, and the General Counsel ought first to address the issue; then, if necessary, the Court can review the question.” Ibid. Nonetheless, the Stuckey panel ig*213nored the Carbino injunction when it ordered the parties and invited amici to submit briefs (in an October 19, 1998, order designated for electronic publication that, apparently, was not submitted to West-law), and scheduled oral argument (in a June 8, 1999, unpublished order) for July 29, 1999, on the very issues that Carbino had said should be deferred until the Board had first ruled on them. Having seen the Stuckey panel jump the gun, the Morton panel, inexplicably, has now decided that it is necessary that the Stuckey case, already an illegitimate entry, be left at the starting gate. One is left to wonder why.

II. Conclusion

For all of the above reasons, we believe that the matters involved are of exceptional importance and should be dealt with by the full Court. We want to stress again that we are not saying that the Court’s conclusion as to the impact of the M21-1 provisions is necessarily incorrect. We are saying that the panel opinion’s analysis is faulty and unpersuasive; that binding precedent may be in conflict with that analysis and is ignored; that Stuckey and not Morton is the case in which the issue should be addressed after a full oral argument (if the Court in Stuckey, supra, gets past the threshold issue); and that the Court should have the benefit of full briefing from the Secretary and appellants’ advocates and full oral argument before deciding the knotty questions involved in this case.

. See U.S. Vet.App.R. 35(c) ("Motions for full Court ... [o]rdinarily they will not be granted unless such action is necessary to secure or maintain uniformity of the Court’s decisions or to resolve a question of exceptional importance.”).

. “Only the en banc Court may overturn a panel decision.” Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992).

. Specifically, the appellant here relies on two provisions of the VA Adjudication Procedure Manual, M21-1 [hereinafter Manual M21-1], neither of which is set forth in the panel opinion at issue here. First, he relies on the following:

Where medical causation is the issue, competent medical evidence to the effect that the claim is plausible or possible is required to make the claim well grounded. If a claim is potentially plausible on a factual basis, the regional office must initiate development. The duty to assist will prevail while development is undertaken. If after full development the claim is found to be well grounded, the merits of the claim must be reviewed.

Manual M21-1, Part VI, ¶ 2.1 Of (emphasis added). Second, he relies on the following:

VA is not required to carry to full adjudication a claim which is not well grounded. Before a decision is made about a claim being well grounded, it will be fully developed.

Manual M21-1, Part III, ¶ 1.03a (emphasis added).

. See Sarmiento v. Brown, 7 Vet.App. 80, 86-89 (1994) (Kramer, J., concurring); see also Laruan (Anchong) v. West, 11 Vet.App. 80, 86-91 (1998) (en banc) (Kramer and Steinberg, J.J., concurring in part and dissenting in part)..

. The panel in Morton v. West, 12 Vet.App. 477 at 481, 483-84 (1999) [hereinafter Morton at 481], characterizes the provisions at issue in Hamilton (Stanley) v. Derwinski, 2 Vet.App. 671, 675 (1992), and Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990), aff'd, 972 F.2d 331 (Fed.Cir.1992), as “[s]ubstantive rules, those which have the force of law and narrowly limit administrative action ... [and] are equivalent of Department regulations”, and holds that the Manual M21-1 duty-to-develop provisions are not substantive because they "dictate how benefits will be awarded for specific disabilities and are based upon the Secretary's authority to define disabilities”, Morton at 483-84. The "narrowly limit administrative action” language used in Fugere and Hamilton was taken, in Fugere, from Carter v. Cleland, 643 F.2d 1, 8 (D.C.Cir.1980), which derived the phrase from Guardian Federal Savings & Loan Ass'n v. FSLIC, 589 F.2d 658, 666-67 (D.C.Cir.1978). In Fugere, this Court stressed that the provision at issue "regulates the awarding of benefits for hearing defects in a particular instance, i.e., when a change in benefits would result only from the implementation of a new rating schedule the old criteria must be applied”. That is, the provision clearly was mandatory and not a matter left to the adjudicator’s discretion. Similarly, the U.S. Court of Appeals for the D.C. Circuit in Guardian Federal used the phrase to draw a distinction between a rule that preserves substantial administrative discretion for the agency in question as contrasted with one that "narrowly limits” it. Guardian Federal, 589 F.2d at 666-67. There is no hint in Guardian Federal that its holding that the regulation in *208question was not a substantive rule, governed by the advance-notice-and-public-comment requirements in the Administrative Procedure Act (APA), 5 U.S.C. § 553, was in any way affected by the fact that the FSLIC regulation required all, rather than only some, of the regulated savings institutions to be audited at least once annually in a manner satisfactory to the FSLIC "in accordance with general policies from time to time established by the Board.” Id. at 661. See 5 U.S.C. § 553(b) ("[e]xcept when notice or hearing is required by statute, this subsection [requiring ‘[g]eneral notice of proposed rule making’] does not apply (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”); see also 5 U.S.C. § 553(c) ("[a]fter notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments”). Hence, neither the original source of the "narrowly limits” test nor the Court's application of it in Fugere (or in Hamilton, for that matter) indicated that the measure of the substantive nature of a claims-adjudication rule adopted by VA is to be controlled by the number of persons or disabilities that its directives may encompass.

. As to Fugere, the provision "specifically provided the following direction to adjudicators:

' "Changed Criteria. If the decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, apply the old criteria and make no reduction.” ' ” Fugere, 1 Vet.App. at 104 (quoting Manual M21-1, ¶ 50.13(b) (Nov. 18, 1987)). This was an unequivocal command. As to Hamilton, the Manual M21-1 required that if " 'the evidence shows that veteran engaged in combat with the enemy and the claimed stres-sor is related to combat, [then] no further development for evidence of a stressor is necessary.’ ” Hamilton, 2 Vet.App. at 674 (quoting Manual M21-1, Part VI, ¶ 7.46e (Mar. 17, 1992)). This provision, too, was an unequivocal command. Indeed, this requirement to forgo further development and accept the asserted stressor flows directly from opinions of this Court, as we held in Cohen (Douglas) v. Brown, 10 Vet.App. 128, 145-46 (1997) (citing Zarycki v. Brown, 6 Vet.App. 91, 97 (1993)), in interpreting 38 U.S.C. § 1154(b) and the Manual M21-1 provision.

. The entire text of the Manual M21-1 Foreword reads as follows:

FOREWORD

This manual provides procedures for the adjudication of claims for compensation, pension, dependency and indemnity compensation, accrued benefits and burial allowance. Part I, Introduction, presents an overview of the history and organization of the Department of Veterans Affairs (VA). It also describes the organization, positions and responsibilities of an adjudication division. Part II, Clerical Procedures, outlines clerical responsibilities and actions. Part III, Authorization and Clerical Procedures, covers claims development, evidence requests and those areas where clerical and claims examiner functions overlap.

Part IV, Authorization Procedures, pertains to the responsibilities that fall within the realm of the authorization activity, such as award procedures, administrative decisions and benefit authorization. Part V, Computer Processing, explains the concepts of award processing on our computer systems. It gives examples and instructions for each type of transaction processed in adjudication.

Part VI, Rating Board Procedures, covers the responsibilities of the rating activity. It contains instructions for specific types of ratings, explanations of special procedures for certain medical conditions and the overall descriptions of the duties of the rating specialist.

Material is divided into numbered chapters and chapter titles are listed in the table of contents. Specific subjects for each Part are found in the index included with that Part. Chapters are subdivided into sub-chapters where appropriate. Paragraphs are given a decimal number starting with the digit 1. The digit or digits to the left of the decimal indicate(s) the chapter number, and the digits to the right of the decimal indicate a main paragraph. Pages are numbered from 1 within each chapter and subchapter while paragraphs are numbered from 1 within each chapter.

Revisions will generally be issued in increments no smaller than a subchapter. If a change is needed, the entire subchapter, chapter or part will usually be replaced. Changes will carry the date and number of the change.

Procedural changes requiring immediate implementation may be E-mailed in letter format, over the signature of the Director, Compensation and Pension Service. Those changes will be incorporated into the manual as soon thereafter as possible.

Deviation from any of the prescribed procedures without prior authorization of the Service Director is prohibited.

Manual M21-1, Foreword.

. See discussion of Hamilton, supra note 6.

. It is questionable whether the panel’s conclusion can be correctly considered a “holding”. See infra at part II.F.

. 126 F.3d 1464 (Fed.Cir.1997), cert. denied, 118 S.Ct. 2348 (1998).

. Indeed, the Federal Circuit opinion in Epps actually quotes the full text of the first two sentences of section 5107(a) but deletes the ‘'Except” clause. Epps, 126 F.3d at 1467.

. In that regard, it seems pertinent that in Patton v. West the Court enforced against the Secretary a provision of the Manual M21-1 that the represented appellant had not raised to the Court, let alone to the Board of Veterans’ Appeals (Board). Patton, 12 Vet.App. 272, 282-83 (1999) (discussing many cases regarding Court’s discretion to address matters not raised before the Board).

. The Court has made clear that we will not provide advisory opinions. See, e.g., Waterhouse v. Principi, 3 Vet.App. 473, 474-76 (1992); see also Haines v. Gober, 10 Vet.App. 446, 446-47 (1997) (quoting Landicho, infra); Landicho v. Brown, 7 Vet.App. 42, 49 (1994) (quoting Waterhouse); Aronson v. Brown, 7 Vet.App. 153, 159 (1994) (Steinberg, J., concurring) (citing Pontarelli v. Stone, 978 F.2d 773, 776 (1st Cir.1992)).