United States Court of Appeals for the Federal Circuit
October 28, 1999
DOUGLAS A. HAYWOOD, CLAIMANT-APPELLANT,
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS,
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 the Court of Appeals for Veterans Claims. See Richard, 161 F.3d at 721; Haines v. West, 154 F.3d 1298, 1299-1300 (Fed. Cir. 1998).
There is no dispute that the Board has authority to reconsider its own decisions sua sponte. See 38 C.F.R. § 20.1000 (1998) ("Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans' Appeals . . . on the Board's own motion . . ."). However, Mr. Haywood asserts that 38 C.F.R. § 20.1000 goes even further. He argues that, when read in conjunction with Karnas v. Derwinski, 1 Vet. App. 308 (1991), this regulation actually imposes a duty on the Board to sua sponte reconsider its decisions whenever there is a change in the law during the 120-day period for appeal, assuming that the change is favorable to the veteran's case.
In Karnas, a law that was favorable to the veteran's claim was adopted after the veteran filed his appeal with the Board but before the Board rendered its decision. The Court of Appeals for Veterans Claims held that the Board should have applied the new law, stating that, "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to appellant should . . . apply unless Congress provided otherwise." Karnas, 1 Vet. App. at 313.
Mr. Haywood argues that a sua sponte reconsideration rule, like the Karnas decision, would be consistent with the statutory "duty-to-assist" and "benefit-of-the-doubt" doctrines of 38 U.S.C. §§ 5107(a), (b). In paraphrased form, section 5107(a) states that, while claimants have the burden of submitting evidence of a well-grounded claim, the Secretary shall assist them in developing facts pertinent to their claims and shall request from them all necessary information. Section 5107(b) states that, where there is an equal balance of evidence in a case, "the benefit of the doubt . . . shall be given to the claimant." Mr. Haywood reads these two provisions to mean that the Board, not the veteran, has the burden of staying abreast of changes in VA regulations.
Mr. Haywood's statutory interpretation argument was presented to the Court of Appeals for Veterans Claims. Such arguments are preserved for review in this court notwithstanding the absence of any reference to them in the opinion of the Court of Appeals for Veterans Claims. See Linville v. West, 165 F.3d 1382, 1384-85 (Fed. Cir. 1999) ("[A] question otherwise permissible for our review under 38 U.S.C. § 7292 does not fail the jurisdictional test simply because it was ignored or silently rejected by the Court of Veterans Appeals.") However, although we have jurisdiction to hear Mr. Haywood's statutory interpretation argument, we may refrain from doing so until the Court of Appeals for Veterans Claims has had an opportunity fully to address and decide the matter. While it is true that Mr. Haywood technically raised this argument before the Court of Appeals for Veterans Claims, he did so only briefly and with little emphasis. Consequently, neither the parties nor the Court of Appeals for Veterans Claims gave much attention to the statutory interpretation issue that is now being presented for our review.
The Supreme Court has recognized that "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121 (1976). Although the issue presented in this case is purely one of law, our review would nonetheless be facilitated by a full record of the parties' arguments and a decision of the Court of Appeals for Veterans Claims on the merits of this issue. See International Union, United Auto., Aerospace & Agric Implement Workers v. Brock, 783 F.2d 237, 251 (D.C. Cir. 1986) ("Even where issues are purely legal, advocates' arguments often provide insights and perceptions that are simply not ascertainable through library research alone."). Furthermore, because we recognize that the Court of Appeals for Veterans Claims has considerable expertise in this area of law, we think it prudent to allow it the opportunity to pass on this important question of statutory interpretation. See Technicolor Videocassette, Inc. v. United States, 90 F.3d 484, 486 (Fed. Cir. 1996) (legal issue not addressed by lower court remanded for further briefing and argument because of lower court's expertise in analyzing the statute at issue).
We note that Mr. Haywood's argument assumes, among other things, that action or inaction by the Board of Veterans' Appeals constitutes part of the position of the government for purposes of assessing whether the government's position in a given case was substantially justified. We express no view on that assumption, or on any other matter embraced in Mr. Haywoood's argument. The only thing we decide in this opinion is that the case is remanded for further adjudication in the Court of Appeals for Veterans Claims.
For the reasons stated above, we vacate the decision below and remand this case to the Court of Appeals for Veterans Claims for adjudication of the statutory challenge raised by Mr. Haywood.
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