William H. Tietjen v. United States Veterans Administration Thomas K. Turnage, Administrator of Veteran's Affairs

ORDER

Appellant William H. Tietjen had been receiving 100% disability benefits because of a service-connected disability. In 1981, the Veteran’s Administration initiated a review program, in the course of which appellant’s benefits were reduced to 40%. Appellant claims that the Administrator’s own regulations prevent him from reducing his disability entitlements, and that the Administrator’s action thus constitutes a due process violation. The three regulations in question are 38 C.F.R. §§ 3.327 (b)(2) (no reexamination of disability recipient whose condition is deemed to be “static”), 3.343(a) (no reduction of disability without examination showing material improvement), and 3.344 (generally no reduction of disability rating based on one examination).

38 U.S.C. § 211 (a) states in part:

Section 211(a) thus precludes judicial review of the Administrator’s decisions of law or fact concerning the administration of benefits legislation. It does not, however, bar review of “constitutional attacks on legislation governing the provision of VA benefits.” See Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983) (citing Johnson v. Robinson, 415 U.S. 361, 367 , 94 S.Ct. 1160 , 39 L.Ed.2d…