Before Mayer, Chief Judge, Michel and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge.
Rodney Rhodan challenges the decision of the Court of Appeals for Veterans Claims, denying his claim for fees and costs under the Equal Access to Justice Act (EAJA). The Court of Appeals for Veterans Claims held that the government's position with respect to Mr. Rhodan's claim for veterans' benefits was substantially justified and that EAJA fees were therefore not warranted under 28 U.S.C. § 2412(d) (1994). On appeal, Mr. Rhodan argues that the court misinterpreted section 2412(d) by considering only the particular issue that precipitated remand in the case, rather than considering the entirety of the government's conduct. Because we have no jurisdiction to consider this legal argument based on the facts presented in this case, we dismiss Mr. Rhodan's appeal.
Mr. Rhodan received an award of service connection and 30 percent disability rating for post-traumatic stress disorder (PTSD) stemming from his service in Lebanon. In 1996, Mr. Rhodan appealed his disability rating to the Board of Veterans Appeals (Board). The Board ruled that Mr. Rhodan's PTSD did not warrant a rating in excess of 30 percent. Rhodan v. Gober, No. 93-16187 (Aug. 1, 1996). However, at the time of the Board's decision there was a proposed rule change that would modify the Schedule for Rating Disabilities pertaining to mental disorders, including PTSD. See 60 Fed. Reg. 54,825 (Oct. 25, 1995). On October 8, 1996, approximately 10 weeks after the Board denied Mr. Rhodan's claim, the Veterans Administration (VA) published the revised Schedule for Rating Disabilities with an effective date of November 7, 1996. See 61 Fed. Reg. 52,695 (Oct. 8, 1996).
Mr. Rhodan filed a motion for remand on May 14, 1997, arguing that the Board should (1) apply the VA's revised Schedule for Rating Disabilities pertaining to mental disorders; (2) address whether secondary service connection was warranted for major depression; and (3) comply with Fleshman v. Brown, 9 Vet. App. 548 (1996), and Mee v. Brown, 4 Vet. App. 220 (1993), which concern the Board's duty to differentiate between service-connected and non-service-connected mental disabilities. The VA did not contest Mr. Rhodan's first argument, that the case should be remanded in light of the amended rating schedule, but it disagreed with the other two grounds asserted by Mr. Rhodan.
The Court of Appeals for Veterans Claims vacated and remanded the matter on the sole ground that Mr. Rhodan was entitled to an adjudication of his claim using the revised Schedule for Rating Disabilities pertaining to mental disorders. Rhodan v. Gober, No. 96- 1080 (Aug. 28, 1997). The court expressly rejected Mr. Rhodan's second argument, concerning a secondary service connection for major depression, and implicitly rejected his third argument concerning differentiation between service-connected and non-service-connected mental disabilities. *fn1
Following remand, Mr. Rhodan filed an application for EAJA fees, claiming that he was a prevailing party because the Board's decision had been vacated, and further claiming that the government's position had not been substantially justified. The Court of Appeals for Veterans Claims rejected Mr. Rhodan's EAJA application on the ground that the government was substantially justified in relying on the original rating schedule because the revised regulation was not effective at the time of the Board's decision. Rhodan v. West, 12 Vet. App. 55 (1998). The court did not consider the other two issues raised by Mr. Rhodan in his motion for remand, stating that, "because the Court remanded his claim based solely upon the reason that the PTSD regulations had changed, it is irrelevant whether the Secretary's position on those other issues was substantially justified." Id. at 58. Mr. Rhodan appeals to this court, seeking an order vacating and remanding his application for EAJA fees.
The scope of our review of a decision of the Court of Appeals for Veterans Claims is limited. We must affirm the decision unless we find it to be "(A) arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law." 38 U.S.C. § 7292(d)(1) (1991).
Mr. Rhodan's sole argument on appeal is that the Court of Appeals for Veterans Claims misinterpreted 28 U.S.C. § 2412(d) by considering only the basis for remand in determining whether the government's position was substantially justified. In essence, Mr. Rhodan challenges the court's reliance on Dillon v. Brown, 8 Vet. App. 165 (1995). In Dillon, an appellant who prevailed on remand argued that the Secretary's position lacked substantial justification, due not only to the particular issue that served as the basis for remand, but also to three additional issues identified in appellant's brief. The court refused to entertain the three additional issues, reasoning that, because those issues were not addressed by the court in its remand order, they "were not 'relevant determinative circumstances' that would shed light on the reasonableness of the Secretary's administrative position." Id. at 167- 68.
Mr. Rhodan seeks review of whether the "relative determinative circumstances" rule of Dillon conflicts with the "substantial justification" language of 28 U.S.C. § 2412(d), as interpreted by this court. We have previously held that a finding of substantial justification requires a court to consider the "entirety of the government's conduct." See Chiu v. U.S., 948 F.2d 711, 715 (Fed. Cir. 1991). Thus, Mr. Rhodan questions whether the Dillon rule correctly takes into account the entirety of the government's conduct, as required by Chui. However, Mr. Rhodan has not presented a proper case for addressing this particular question of law.
Mr. Rhodan's argument--and our jurisdiction--necessarily turns on a particular construction of the legal proceedings below. To reach the merits of this appeal, we must first assume that: (1) Mr. Rhodan raised three issues in his motion for remand; (2) the Court of Appeals for Veterans Claims remanded the case on one issue, but failed to address one or both of the other two issues; and (3) the court, in adjudicating Mr. Rhodan's application for EAJA fees, refused to consider the government's position with respect to the grounds that were presented by Mr. Rhodan but not addressed by the court in its remand order. Upon consideration of the record, we find that this construction of the legal proceedings does not match what actually transpired in this case.
To sort out the issues in this case, we must look to the August 1997 remand order that was issued by the Court of Appeals for Veterans Claims. All three of Mr. Rhodan's arguments are clearly enumerated and summarized in the first paragraph of this opinion. See Rhodan v. Gober, No. 96-1080, slip op. at 1 (Aug. 28, 1997). In the second paragraph, the court addresses each of these arguments in turn. Mr. Rhodan's first argument, that the matter should be decided in light of the amended Schedule for Rating Disabilities, is clearly accepted as a basis for remand. Id. The second argument, that Mr. Rhodan is entitled to secondary service connection for depression, is clearly rejected on jurisdictional grounds. Id. Only the third argument, that the Board failed to comply with Fleshman and Mee, raises any degree of ambiguity. In addressing that argument, the court simply summarizes the government's rebuttal, without providing a statement of its own Conclusion.
Despite the textual ambiguity regarding the Disposition of Mr. Rhodan's third argument, it is clear, as a legal matter, that the court actually considered and rejected this argument. First, the court made clear that the sole basis of its remand was that "the [c]court and VA are required to apply the amendments to the extent that they are more favorable to the claimant than the earlier provisions." Id. at 2. Thus, because Mr. Rhodan's third argument was not cited as a basis for remand, despite having been considered by the court, we must conclude that the court rejected this argument by implication. Second, in the December 1998 opinion denying Mr. Rhodan's application for EAJA fees, the court stated that the August 1997 remand order "expressly rejected Mr. Rhodan's other arguments for remand." Rhodan, 12 Vet. App. at ...