dissenting.
I must respectfully dissent from the majority opinion. Because Appellants John W. Sellers, Jr. and Arthur A. Hayday, Jr. (collectively “Appellants”) appeal the substance of the veterans disability ratings schedule, I would vacate the judgment of the Court of Appeals of Veterans Claims (“Veterans Court”) and remand with instructions to dismiss Appellants’ actions for lack of jurisdiction.
The question of the subject matter jurisdiction of the Veterans Court may be raised at any time. Newport News Shipbuilding & Dry Dock Co. v. Garrett, 6 F.3d 1547, 1553 (Fed.Cir.1993). The Veterans Court has exclusive jurisdiction to review appeals from the Board of Veterans Appeals. 38 U.S.C. § 7252(a) (2000). However, the Veterans Court “may not review the schedule of ratings for disabilities adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule.” Id. § 7252(b). This court has interpreted § 7252(b) to place the substance of the schedule of ratings outside the jurisdiction of the Veterans Court. Fugere v. Derwinski, 972 F.2d 331, 335 (Fed.Cir.1992). This exclusion is based on the conclusion that “[t]he Court of Veterans Appeals may not second guess the Secretary as to what the schedule [of ratings] should contain.” Id.
Although this Court has jurisdiction to review decisions of the Veterans Court “on a rule of law or of any statute or regulation ... or any interpretation thereof,” we lack jurisdiction to consider a refusal by the Veterans Court “to review the schedule of ratings for disabilities adopted under section 1155 of this title.” 38 U.S.C.A. § 7292(a) (West Supp.2003).
Section 4.130, 38 C.F.R., entitled “Schedule of Ratings — mental disorders,” states in relevant part:
The nomenclature employed in this portion of the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-3V). Rating agencies must be thoroughly familiar with this manual to properly implement the directives in § 4.125 through § 4.129 and to apply the general rating formula for mental disorders in § 4.130. The schedule for rating for mental disorders is set forth as follows ....
The regulation then provides tables of various mental disorders and a “General Rating Formula for Mental Disorders” which enumerates various categories with corresponding percentage ratings. For example, the 70% disability category provides:
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
Appellants first argue that the plain language of 38 C.F.R. § 4.130 requires that determinations of 70% entitlement be made only on the basis of “[o]ccupational and social impairment, with deficiencies in most areas” and not on the basis of the exemplary symptoms following “such as.” *1329Appellants challenge the examples following “such as” and contend that they are neither rating criteria nor symptoms of post-traumatic stress disorder (“PTSD”) included in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”). They assert that the Board erred by considering the examples following “such as” in § 4.130 and argue that the Board instead should have considered exclusively the symptoms of PTSD identified in the DSM-IV.
The majority characterizes Appellants’ argument as directed to the “interpretation of section 4.130, specifically the relationship between the DSM-IV and the general rating formula.” Ante at 1324. However, Appellants are not challenging an interpretation of § 4.130. What they dispute is the substance of the ratings schedule. This was made clear in both of the Appellants’ briefs: “The only symptoms of PTSD recognized by VA are those contained in the DSM-IV.... The representative examples listed in § 4.130 are neither rating criteria nor symptoms of PTSD.” Sellers Br. at 15; see also Hayday Br. at 12-13 (“The only PTSD symptoms VA recognizes are those contained in the DSM-IV.... The representative examples listed in § 4.130 are not rating criteria and only two are symptoms of PTSD.”).
Appellants also argue that an interpretation of § 4.130 that allows a rating decision based on examples not included in the DSM-IV is arbitrary because the DSM-IV contains the only appropriate list of symptoms, citing Mauerhan v. Principi, 16 Vet.App. 436 (2002). This case is distinguishable from Mauerhan, where the Veterans Court required that rating specialists “consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.” Id. at 443. Appellants here do not ask that § 4.130 be interpreted to include both the impairment examples explicitly listed in the rating schedule and the symptoms of PTSD listed in the DSM-IV. Rather, Appellants seek to replace the impairment examples in the rating schedule with the symptoms of PTSD listed in the DSM-IV. At the core of their arguments, Appellants question the content of the ratings schedule and seek to change the substance of the disability ratings schedule relating to PTSD and to substitute the symptoms of PTSD in the DSM-IV for the impairment examples following “such as” listed in the rating schedule.
The Government contends that Appellants’ arguments challenge not the interpretation of the rule but the content of the ratings schedule. Thus, the Government asserts that these appeals are outside the jurisdiction of the Veterans Court and hence also beyond our jurisdiction. I agree. In my opinion, Appellants are asking the Court essentially to reform the schedule of disability ratings contained in § 4.130 for PTSD disabilities either by substituting symptoms of PTSD identified in the DSM-IV for the current examples contained in the regulation or by requiring that the listed examples be ignored in favor of the DSM-IV criteria. Because the Veterans Court lacks jurisdiction to review the substance of the schedule of ratings, we have no jurisdiction to entertain this argument.
Because both this Court and the Veterans Court lack jurisdiction to consider the content of the disability ratings schedule, I respectfully dissent and would remand this case to the Veterans Court with instructions to dismiss for lack of jurisdiction.