Swan v. Derwinski — Standing required to challenge VA regulation validity

The appellant, a veteran whose schedular evaluation for paranoid schizophrenia had been reduced from 100 percent to 70 percent, sought to supplement the appellate record with materials relating to the promulgation and policy basis of 38 C.F.R. § 4.16(c) so that he could challenge the regulation as arbitrary and capricious. The Court denied the motion. It explained that while the Court has authority to set aside regulations found arbitrary, capricious, or otherwise unlawful, judicial review under the veterans’ review statute requires that the appellant be a person adversely affected by the Board’s decision.

The Court applied ordinary standing principles, relying on the requirement of a personal stake in the controversy and the need for a concrete injury fairly traceable to the challenged conduct. Because the appellant did not show that § 4.16(c) personally harmed him, and in fact appeared to benefit from that regulation, he lacked standing to attack its validity. The Court noted that any argument that the Board should have applied § 4.16(c) to his case could still be raised on appeal without mounting a facial challenge to the regulation. The motion to supplement was denied and the appeal proceeded without consideration of the regulation’s validity.

A veteran lacks standing to challenge the validity of a VA regulation unless he demonstrates that he was personally and adversely affected by that regulation.

Facial attacks on VA regulations require a concrete, personal injury. If the regulation may actually benefit the claimant, the proper appellate argument is misapplication, not invalidity.

Swan is an early Court of Veterans Appeals standing decision that frames the limits of regulatory challenges in veterans appeals. It is useful when opposing or evaluating attempts to mount broad attacks on VA regulations without showing personal harm.

A veteran argues that a rating regulation is invalid as applied to all mentally disabled veterans, but his own case file shows the regulation would have increased his rating if correctly applied. Under Swan, he would likely lack standing to challenge the regulation’s validity.

Use Swan to defeat overbroad facial challenges to VA regulations where the appellant cannot show direct adverse effect. It also supports distinguishing between a permissible argument that the Board misapplied a regulation and an impermissible argument that the regulation itself should be set aside.

Allen v. Wright, Baker v. Carr, Flast v. Cohen, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., Mokal v. Derwinski