Before Mayer, Chief Judge, Michel and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge.
Douglas Haywood 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 EAJA fees were not warranted under 28 U.S.C. § 2412(d) (1994) because the government's position with respect to Mr. Haywood's claim for veterans' benefits was substantially justified. On appeal, Mr. Haywood argues that the court misinterpreted 38 U.S.C. §§ 5107(a), (b) (1994) by failing to impose a duty on the Board of Veterans' Appeals (Board) to sua sponte reconsider its decision following a change in the applicable law that occurred during Mr. Haywood's 120-day period for appeal. Because the Court of Appeals for Veterans Claims did not fully address this issue of law, and because we would benefit from a more complete record on this issue, we vacate and remand.
Mr. Haywood received an award of service connection and 30 percent disability rating for post-traumatic stress disorder (PTSD) stemming from his service in Vietnam. He appealed his disability rating to the Board in 1995. While Mr. Haywood's appeal was pending, the Veterans Administration (VA) proposed to amend the Schedule for Rating Disabilities pertaining to mental disorders, including PTSD. See 60 Fed. Reg. 54,825 (Oct. 25, 1995). On October 8, 1996, the 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).
On October 31, 1996, approximately three weeks after the revised Schedule for Rating Disabilities was published, but seven days before it became effective, the Board ruled that Mr. Haywood's PTSD did not warrant a rating in excess of 30 percent. Haywood v. Gober, No. 93-11 187, slip op. at 13 (Oct. 31, 1996). Thereafter, Mr. Haywood appealed the Board's ruling to the Court of Appeals for Veterans Claims. Because the Board's decision was based on the pre-revision Schedule for Rating Disabilities, Mr. Haywood and the VA filed a joint motion for remand in the Court of Appeals for Veterans Claims, asserting that the Board should apply the revised schedule in determining Mr. Haywood's disability rating. On September 23, 1997, the Court of Appeals for Veterans Claims vacated and remanded the Board's decision solely on this ground. Haywood v. Gober, No. 97-25, slip op. at 1 (Sep. 23, 1997).
Following remand, Mr. Haywood filed an application for EAJA fees, claiming that he was a prevailing party because the Board's decision had been vacated and further claiming, inter alia, that because the Board did not sua sponte reconsider its decision after the revised Schedule for Rating Disabilities became effective, the government's position was not substantially justified. The Court of Appeals for Veterans Claims rejected Mr. Haywood's EAJA application on the ground that the government was justified in relying on the old regulations. Haywood v. West, 12 Vet. App. 55, 56-57 (1998). The court concluded that, since the pre-revision rating schedule was the only version of the regulation that the Board could lawfully have applied at the time of its decision, the government's position at the administrative level was substantially justified. Id. In its opinion, the court did not address Mr. Haywood's argument regarding the Board's putative duty to sua sponte reconsider its decision following the adoption of the revised Schedule for Rating Disabilities on November 7, 1996.
Mr. Haywood appeals to this court, seeking an order vacating and remanding his application for EAJA fees.
Mr. Haywood argues that the Court of Appeals for Veterans Claims misconstrued the "duty-to-assist" and "benefit-of-the-doubt" provisions of 38 U.S.C. §§ 5107(a), (b) (1994) by failing to recognize a duty on the part of the Board to sua sponte reconsider its decisions when they are affected by subsequent changes in the law. Specifically, Mr. Haywood argues that the government was unjustified in failing to sua sponte reconsider its October 31, 1996, decision, denying him an increased rating for PTSD, in light of the more favorable rating schedule that was adopted on November 7, 1996.
The government argues that we have no jurisdiction to hear Mr. Haywood's appeal. Citing our decisions in Stillwell v. Brown, 46 F.3d 1111 (Fed. Cir. 1995), and Helfer v. West, 174 F.3d 1332 (Fed. Cir. 1999), the government asserts that, because decisions on substantial justification under EAJA ordinarily involve the application of law to facts, such decisions are beyond the jurisdiction of this court. This assertion is both over-broad and inapplicable to the issue before us.
Mr. Haywood does not dispute the Court of Appeals for Veterans Claims' treatment of the facts in this case. Instead, he argues that the court misconstrued 38 U.S.C. §§ 5107(a), (b) (1994) by failing to impose a duty on the Board to sua sponte reconsider its decision in light of a subsequent change in the law. Thus, Mr. Haywood raises a question of statutory interpretation.
The two EAJA cases cited by the Government, Stillwell and Helfer, do not remove from our jurisdiction questions of statutory interpretation. In Stillwell, the appellant's appeal rested "solely upon the contention that the Court of [Appeals for Veterans Claims] erred in finding that the position of the VA was substantially justified." 46 F.3d at 1113. Thus, the appeal in Stillwell was nothing more than a challenge to the court's application of law to facts, and we correctly dismissed that challenge for lack of jurisdiction.
In Helfer, the appellant presented his case as a constitutional challenge and a question of statutory interpretation. We specifically avoided the question of whether the Court of Appeals for Veterans Claims erred in applying the EAJA statute to the facts of the case, noting our lack of jurisdiction to review such questions. 174 F.3d at 1335 ("To the extent that [Helfer] contends . . . that the Court of [Appeals for Veterans Claims] erred in holding that the government's position was substantially justified, we lack jurisdiction to address that question.") However, we did exercise jurisdiction over both the constitutional and statutory interpretation arguments raised by Mr. Helfer. Id. ("We therefore confine ourselves to the constitutional question and the question of statutory interpretation to which Mr. Helfer devotes most of his attention.").
As in Helfer, we have jurisdiction over Mr. Haywood's appeal to the extent that it challenges the interpretation of a statute relating to veterans' benefits. See 38 U.S.C. § 7292(c) (1994); Richard ex rel. Richard v. West, 161 F.3d 719, 721 (Fed. Cir. 1998) ("Because appellant requests this court to interpret statutes relating to veterans' benefits and the rules established for the Court of [Appeals for Veterans Claims], this court has jurisdiction . . ."). We review de novo the statutory interpretation of ...