Federal Circuit Bars Judicial Review of Systemic Challenges to 0 Percent VA Ratings

Federal Circuit Dismisses Systemic Challenge to 0 Percent VA Ratings for Lack of Jurisdiction

On August 20, 2026, the Federal Circuit held in Gordon v. Collins that neither it nor the Court of Appeals for Veterans Claims may hear a veteran's argument that a 0 percent disability rating violates the ten-grade compensation scheme in 38 U.S.C. sections 1110, 1114, and 1155.

Information last verified on August 27, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This article addresses a federal appellate ruling on the Federal Circuit's and the Court of Appeals for Veterans Claims' jurisdiction over one type of legal argument in VA disability ratings claims. It does not address how to appeal an individual VA rating decision on the evidence, VA's math for combining multiple ratings, or TDIU (total disability based on individual unemployability). For those topics, see our overview of veterans disability law.

What Happened

Vaughn M. Gordon served in the U.S. Army from February to August 1968 as a medical lab specialist. In August 2013 he filed a claim for service-connected bilateral hearing loss. In December 2021, after a series of decisions and remands, VA granted service connection but assigned a non-compensable, 0 percent, disability rating. In May 2023 the Board of Veterans' Appeals denied him an initial compensable rating, and Gordon appealed to the Court of Appeals for Veterans Claims (the Veterans Court).

Before the Veterans Court, Gordon did not argue that the medical evidence supported a higher rating. He argued something more sweeping: that by assigning any 0 percent rating to a confirmed service-connected disability, VA was effectively "creat[ing] an eleventh grade of disability" that Congress never authorized, since 38 U.S.C. section 1155 caps the ratings schedule at ten grades running from 10 percent to a total, 100 percent rating. The Veterans Court held it had no authority to consider that argument at all, citing its own jurisdictional statute and the Federal Circuit's 2015 decision in Wingard v. McDonald. Gordon appealed to the Federal Circuit.

A unanimous panel of Judges Stoll, Reyna, and Hughes held that the courts have no jurisdiction over the argument, in an opinion written by Judge Stoll. The court framed the stakes at the outset: "This case reemphasizes both our jurisdiction and the jurisdiction of the United States Court of Appeals for Veterans Claims." It then held that "our precedent in Wingard v. McDonald, 779 F.3d 1354 (Fed. Cir. 2015), applies to Mr. Gordon's appeal, and we accordingly dismiss for lack of jurisdiction." (Slip op. at 2.)

In Wingard, a veteran had received a 0 percent rating for a service-connected inguinal hernia; after his death, his daughter argued that sections 1110 and 1155 barred VA from ever assigning a 0 percent rating once service connection was established. The Federal Circuit held in 2015 that both the Veterans Court and the Federal Circuit itself are barred, by 38 U.S.C. sections 7252(b) and 7292(a), from reviewing that kind of "substantive challenge to the schedule as conflicting with the statute." Gordon's argument, the panel found, was "identical to the question raised in Wingard." (Slip op. at 6.)

Gordon tried to distinguish Wingard by pointing to Frazier v. McDonough, a 2023 Federal Circuit decision that appeared to reach the merits of a similar argument (and rejected it) rather than dismissing for lack of jurisdiction. The panel explained that "[t]he differences in procedural posture explain any divergence in how Frazier and Wingard addressed the arguments of their respective appellants," noting that in Frazier the issue was raised for the first time on appeal and no party argued the court lacked jurisdiction, so the court reached the merits. Then, "even assuming some tension between the two decisions," it applied a settled internal rule: "When two precedential cases are potentially inconsistent, we are bound by the earlier precedent." Citing its own 1988 decision in Newell Cos. v. Kenney Mfg. Co., the panel explained, "Where there is direct conflict, the precedential decision is the first." (Slip op. at 7.) Because Wingard predates Frazier, Wingard controls, and only the full Federal Circuit sitting en banc could change that.

The court dismissed Gordon's appeal for lack of jurisdiction, assessing no costs.

What the Law Actually Says

Three statutes frame every VA disability rating: 38 U.S.C. section 1110 provides that the United States "will pay to any veteran thus disabled" compensation for a service-connected disability, "as provided in this subchapter." Section 1155 directs the VA Secretary to adopt a ratings schedule "constructed so as to provide ten grades of disability and no more," listing them: "10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and total, 100 percent." Section 1114(a) through (j) then sets the monthly payment amount tied to each of those ten grades.

Notice what is missing from that list: zero. The regulation that fills the gap is 38 CFR 4.31, titled "Zero percent evaluations," which states plainly: "In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." In other words, when a veteran's confirmed service-connected condition does not meet the medical criteria for the lowest compensable grade under its specific diagnostic code, VA assigns 0 percent by regulation, not as an eleventh statutory grade.

Gordon's argument was that this regulatory practice cannot be squared with the statute's own ten-grade text, which starts at 10 percent. The Federal Circuit did not decide whether that argument is right or wrong on the merits. It held that it has no power to decide it, because Congress specifically walled the ratings schedule off from judicial review. The Veterans Court's jurisdictional statute, 38 U.S.C. section 7252(b), states that the Veterans Court "may not review the schedule of ratings for disabilities adopted under section 1155 ... or any action of the Secretary in adopting or revising that schedule." The Federal Circuit's own jurisdictional statute, 38 U.S.C. section 7292(a), carries what the court called a "similar exclusion" into its review of Veterans Court decisions, and separately, section 7292 bars the Federal Circuit from reviewing a factual determination or a law's application to the facts of a particular case, reserving that court for legal and constitutional questions about the framework itself.

That combination is why the two courts drew a firm line between two very different kinds of arguments. A veteran who says "the schedule itself is unlawful because it permits a 0 percent grade" is challenging the ratings schedule, which both courts are barred from reviewing. A veteran who says "the Board misread my audiogram, and the correct reading supports a 10 percent rating under this specific diagnostic code" is challenging how the existing schedule was applied to their case, which remains fully reviewable through VA's ordinary appeals process. Our guide to appealing a VA rating decision covers that ordinary route, including how VA combines multiple ratings under its own combined ratings math.

Service connection and a compensable rating are legally distinct concepts, and Gordon's case shows how they can diverge. Service connection means VA has determined that a current disability is linked to military service. A compensable rating means the severity of that disability, measured against the rating schedule for its specific diagnostic code, is high enough to trigger a monthly payment. VA granted Gordon service connection for his hearing loss in 2021; it simply found the hearing loss, as documented, did not meet the medical thresholds in the applicable diagnostic code for any payment level above zero.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

Gordon v. Collins is a jurisdictional decision, not a substantive one, and that distinction does real work here. The Federal Circuit did not hold that 0 percent ratings are lawful in every case, and it did not hold that VA's regulation at 38 CFR 4.31 is a correct reading of sections 1110, 1114, and 1155. It held that Congress assigned the wisdom of the ratings schedule, as a whole, to the Secretary and to Congress itself, not to the courts, and that a veteran cannot get around that assignment by framing an individual dispute as a systemic statutory challenge.

The opinion is also a clean illustration of how the Federal Circuit resolves its own internal conflicts. Rather than sending the question to the en banc court, the panel gave two answers. Its first was that "[t]he differences in procedural posture explain any divergence in how Frazier and Wingard addressed the arguments of their respective appellants," since in Frazier the issue was raised for the first time on appeal and no party argued the court lacked jurisdiction, so the court reached the merits in the first instance. Its second, offered "even assuming some tension between the two decisions," was a first-in-time rule: an earlier precedential panel decision controls over a later, potentially conflicting one, unless and until the full court overturns it en banc. That means Frazier's 2023 discussion of non-compensable ratings on the merits does not currently open a path around Wingard's 2015 jurisdictional bar, at least not for a three-judge panel. Only the en banc court could change that going forward, and this article does not speculate about whether Gordon will seek rehearing or how the court would rule.

For the broader veterans-law landscape, the decision holds the line the court drew in Wanner v. Principi and Wingard, both of which this opinion invokes: on an appeal from the Veterans Court, it separates rules governing how VA decides a particular case from substantive statutory challenges to the rating schedule itself, and treats only the former as reviewable in that posture. Section 7292(d)(2) separately preserves constitutional questions.

How This Affects You

This ruling does not change how an individual veteran contests a specific 0 percent rating. If a veteran disagrees that their condition's severity, as documented in the medical evidence, was correctly matched to a diagnostic code, that remains an ordinary factual and legal dispute reviewable through VA's appeals system and, ultimately, the Veterans Court. What Gordon forecloses, in an appeal that travels from the Board to the Veterans Court and then to the Federal Circuit, is a different kind of argument: one asserting that the very existence of a 0 percent grade is unlawful across the board, regardless of the medical facts of any particular case. The court stated its holding in those posture-specific terms, quoting Wingard for the proposition that the judicial review provisions "preclude this court from reviewing, on appeal from the Veterans Court, a substantive statutory challenge to [VA] rating-schedule regulations." (Slip op. at 6.) The opinion did not address whether the underlying regulation could be challenged by some other route, such as a direct petition for review of VA rulemaking under 38 U.S.C. section 502, and this article does not predict how such a petition would be received.

A 0 percent rating is not the same as no benefit at all. It establishes service connection, which is often the harder threshold to clear and can matter well beyond the rating percentage itself. A confirmed service-connected condition, even at 0 percent, generally remains eligible for a future claim for an increased rating if the condition worsens, and it can support a later secondary-condition claim under 38 CFR 3.310 if a different condition is caused by the already-service-connected one, under paragraph (a), or aggravated by it, under paragraph (b), without having to relitigate whether the original condition is connected to service. Our explainer on how VA calculates back pay when a rating changes covers what happens when a later rating decision raises the percentage.

A 0 percent rating also generally does not exclude a veteran from VA health care enrollment. Per VA's published priority group criteria, veterans with a non-compensable 0 percent service-connected condition and income under VA's limits are generally placed in priority group 5, and veterans whose 0 percent rating is coded compensable, or who meet certain service-era criteria such as World War II service or Project 112/SHAD participation, are generally placed in priority group 6, rather than being denied enrollment.

None of this is a substitute for reviewing an individual claim file. Veterans who believe their own rating decision was wrongly calculated on the medical evidence can pursue that through VA's ordinary decision review options, a separate route from the argument the Federal Circuit declined to reach in this appeal.

This is general legal information, not legal advice. It covers federal law and a federal appellate decision (Gordon v. Collins, Federal Circuit, No. 2025-1461) governing VA disability claims nationwide, and reflects sources verified on August 27, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction, or an accredited veterans service organization representative, about your specific situation.

Related articles

• how VA math works when you have more than one rated condition
• what TDIU (individual unemployability) is and how it differs from a schedular rating

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Last updated: 2026-08-27. This is a developing story; details verified as of 2026-08-27.