Before Lourie, Schall, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Bryson, Circuit Judge.
Appealed from: Court of Appeals for Veterans Claims Judge Ronald M. Holdaway
This is an appeal from a decision of the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims), denying the appellant's application for legal fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. We reject the appellant's constitutional and statutory arguments over which we have jurisdiction, and we therefore affirm the decision of Court of Veterans Appeals.
Appellant Stephen L. Helfer filed a claim for service-connected disability compensation for certain acquired psychiatric disorders, including post-traumatic stress disorder. In 1995, the Board of Veterans' Appeals denied his claim, and he appealed to the Court of Veterans Appeals. While his appeal was pending, the Secretary of Veterans Affairs adopted a new set of criteria for evaluating mental disorders and amended or adopted several regulations relating to disability claims. In particular, the Secretary adopted the diagnostic criteria for post-traumatic stress disorder found in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
In January 1997, the Secretary filed his brief in this case with the Court of Veterans Appeals. In that brief, the Secretary acknowledged that DSM-IV set forth the applicable standard for diagnosing post-traumatic stress disorder and noted that Mr. Helfer was rated under a prior, superseded version of the DSM. Nonetheless, the Secretary argued that the decision of the Board of Veterans' Appeals denying benefits to Mr. Helfer should be affirmed because, even though there was no dispute that Mr. Helfer was suffering from post-traumatic stress disorder, he had failed to produce sufficient evidence that his condition was service-connected, i.e., that he had experienced any stressors while he was in service that could have triggered post-traumatic stress disorder.
In March 1997, the Court of Veterans Appeals decided Cohen v. Brown, 10 Vet. App. 128 (1997), in which the court held that a remand to the Board of Veterans' Appeals was necessary to allow the Board to ensure that the claimant received consideration under the most favorable version of the DSM. Mr. Helfer's counsel promptly called the Cohen case to the court's attention; counsel urged that Cohen might be pertinent to his arguments for remand on some of the issues on appeal, but that it did not affect his arguments for reversal on one of the issues raised on appeal.
In June 1997, the Court of Veterans Appeals vacated the decision of the Board of Veterans' Appeals in Mr. Helfer's case and remanded the case to the Board for readjudication. The court noted that in deciding Mr. Helfer's case the Board had used earlier editions of the Diagnostic and Statistical Manual of Mental Disorders. In accordance with the Cohen decision, the court ruled that Mr. Helfer was entitled to receive the benefit of the most favorable version of the DSM.
Several months later, Mr. Helfer filed an application with the Court of Veterans Appeals for an order requiring the government to reimburse the attorney fees and expenses he had incurred in connection with his appeal to the court. The government responded that although Mr. Helfer was the prevailing party in the Court of Veterans Appeals, he was not entitled to recover under the Equal Access to Justice Act (EAJA) because the government's position before the court was substantially justified.
Mr. Helfer contended that the government's position before the court was not substantially justified, because the government had failed to apprise the court of the adoption of DSM-IV as the applicable authority for the diagnosis of mental disorders, and had failed to modify its litigating position after the issuance of the Cohen decision in March 1997. The court denied Mr. Helfer's application.
This court has only limited jurisdiction to review rulings of the Court of Appeals for Veterans Claims. Our jurisdictional statute, 38 U.S.C. § 7292, authorizes us to decide "all relevant questions of law," but provides that except to the extent that an appeal presents a constitutional issue, we may not review "(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d).
Cognizant of our narrow jurisdictional mandate, Mr. Helfer has, in the main, presented his case as a constitutional challenge and a request for an interpretation of a statutory provision. To the extent that he contends, apart from his constitutional claim and his statutory construction arguments, that the Court of Veterans Appeals erred in holding that the government's position in the litigation before the Court of Veterans Appeals was substantially justified, we lack jurisdiction to address that question. See Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed. Cir. 1995). We ...