Bowling v. McDonough, 38 C.F.R. § 3.354(a) is not facially vague, and extra-record evidence was properly excluded

Charlotte Bowling and Kevin Appling challenged the constitutionality of 38 C.F.R. § 3.354(a), the VA regulation defining insanity for purposes of the statutory bar to benefits attached to certain other-than-honorable discharges. The Board had found that neither claimant met the regulation, and the Veterans Court declined to consider extra-record evidence the claimants offered to support a facial vagueness challenge. The Veterans Court also rejected the vagueness claim on the merits. On appeal, the Federal Circuit held that the Veterans Court properly confined review to the Board record and correctly refused to excuse the claimants’ failure to develop the factual basis for their constitutional challenge before the Board. The court relied on prior Federal Circuit precedent holding that the Board’s inability to invalidate a measure on constitutional grounds does not necessarily make record development futile. The court further held that the regulation was not shown to be facially vague, emphasizing that the regulation and binding interpretive authorities provide sufficiently objective standards and that the claimants had not shown vagueness as applied to them. The court affirmed without reaching class certification.

A claimant challenging a VA regulation as facially vague must still confront the Veterans Court’s record limitations and cannot avoid Board-level record development simply because the Board lacks authority to declare a regulation unconstitutional; a facial vagueness challenge also fails where the claimant has not shown the regulation is vague as applied to his or her own case.

Bowling is a strong defense to attempts to bypass Board record development for constitutional challenges and a reminder that facial vagueness attacks on VA regulations are difficult to sustain without concrete as-applied ambiguity and a developed factual record.

It is a useful Federal Circuit authority on both administrative record limits and the practical demands of vagueness litigation in veterans cases. Advocates should not assume constitutional issues can be raised for the first time at the Veterans Court or that extra-record statistical materials will automatically be considered.

Failure to develop the evidentiary record before the Board for a constitutional challenge

A claimant argues that a benefits regulation is unconstitutionally vague and seeks to introduce outside reports only at the Veterans Court stage. Bowling supports rejection of that approach if the material was not presented to the Board and there was no true futility in doing so.

Use Bowling to argue against extra-record expansion at the Veterans Court and to support waiver/forfeiture arguments where a claimant did not develop factual support for a constitutional theory before the Board.

Ledford v. West, Wolfe v. McDonough, Johnson v. United States, United States v. Williams, Expressions Hair Design v. Schneiderman