Epps v. Gober, 97-7014

• Decision Date: 07 October 1997
• Docket Number: No. 97-7014,97-7014
• Citation: 126 F.3d 1464
• Parties: Clemment B. EPPS, Claimant-Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1464

126 F.3d 1464

Clemment B. EPPS, Claimant-Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs Respondent-Appellee.

No. 97-7014.

United States Court of Appeals Federal Circuit.

Oct. 7, 1997.

Michael P. Horan, Associate General Counsel, Paralyzed Veterans of America, Washington, DC, argued for claimant-appellant.

John P. Sholar, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant, and David J. Barrans, Staff Attorney, Office of General Counsel, Department of Veterans Affairs, Washington, DC.

Jeffrey Wood, York, PA, for amicus curiae National Organization of Veterans Advocates. Of counsel was Kelly C. Brown, Carpenter Chartered, Topeka, KS.

Before ARCHER, Chief Judge, RICH, and LOURIE, Circuit Judges.

LOURIE, Circuit Judge.

Clemment B. Epps appeals from the decision of the Court of Veterans Appeals affirming the denial of Epps's claim for compensation for service-related injuries. Because the Court of Veterans Appeals did not err in its interpretation of 38 U.S.C. § 5107(a) (1994), we affirm.

BACKGROUND

Epps served on active duty in the United States Army from 1961 to 1964. In 1969, the Department of Veterans Affairs (DVA) determined that his dermatitis of the hands and feet was service-connected and it rated the dermatitis at 10% disabling. In 1991, Epps requested an increase in the disability rating, asserting that he had developed a heart condition as a result of his service-connected dermatitis. After a medical examination, the DVA concluded that Epps's heart condition was not related to his military service and accordingly denied Epps's request.

Epps then appealed to the Board of Veterans' Appeals. See 38 U.S.C. § 7105 (1994). Before the board issued its decision, a hearing was held pursuant to DVA Circular 20-89-11 (Mar. 26, 1990) ("Hearing Officer program" or "Circular"), which sets forth procedures for "post decisional" hearings on DVA benefits issues. At the request of the hearing officer, Epps underwent another physical examination. The examining physician reported that Epps had a heart murmur, but that there was no evidence of a link between Epps's skin condition and any cardiovascular effects. Based on this report, the DVA again denied Epps's claim.

The Board of Veterans' Appeals, upon de novo review, found Epps's claim to be "well grounded" under 38 U.S.C. § 5107(a) (1994). The board found that, because Epps had filed a "well grounded" claim, according to § 5107(a), the DVA had a duty to assist Epps in the development of his claim. However, the board also found that the DVA had adequately assisted Epps, and therefore was not in violation of § 5107(a). Finding the evidence of causation between Epps's skin condition and his heart condition inadequate, the board denied Epps's claim. Epps appealed to the Court of Veterans Appeals. See 38 U.S.C. § 7252(a) (1994).

On appeal to that court, Epps argued that the DVA failed to assist him pursuant to § 5107(a) because it failed to inform him of the type of evidence needed to render his heart condition claim "well grounded." Epps also argued that the hearing conducted pursuant to the Circular was "invalid" because, inter alia, the Circular was neither published in the Federal Register nor subject to public comment pursuant to statutory and regulatory procedures. See 5 U.S.C. § 552 (1994) ¹;

5 C.F.R. § 1.12 (1996) ².

The court concluded that the lack of any competent medical evidence of a nexus between Epps's service-connected skin condition and his heart condition rendered his claim not "well grounded." Epps v. Brown, 9 Vet.App. 341, 344 (Ct.Vet.App.1996). Accordingly, the court concluded that the board erred in proceeding to the merits of his claim, but that this error was nonprejudicial under § 5107(a) because the DVA in fact adequately assisted Epps by informing him that his claim was denied because of a lack of medical evidence of causation. Id. The court noted that the "notice and comment" requirements of the statute and regulation were not violated because the Circular did not contain "substantive" rules. Id. at 345-47. The court also noted that the Circular did not appear to operate to Epps's detriment because it provided Epps with an additional opportunity to be heard, and that the hearing officer had exceeded the legal requirements imposed on the DVA by § 5107(a) when he ordered another medical examination and further assisted Epps in developing his claim, even though Epps had not submitted a "well grounded" claim. Id. at 346. However, the court declined to further consider Epps's attack on the Circular in light of its determination that Epps's claim was not "well grounded." Id. at 347. Epps now appeals to this court.

DISCUSSION

Our jurisdiction to review a decision of the Court of Veterans Appeals is limited by statute:

After a decision of the United States Court of Veterans Appeals is entered in a case, any party to the case may obtain review of the decision with respect to the validity of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.

38 U.S.C. § 7292(a) (1994); see also id. § 7292(c), (d) (vesting jurisdiction over review of Court of Veterans Appeals' decisions in this court and setting certain standards for review); Fugere v. Derwinski, 972 F.2d 331, 334 (Fed.Cir.1992). Our jurisdiction does not extend to challenges either to factual determinations or to the law as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2).

As a preliminary matter, the DVA argues that this court lacks the authority to review the Court of Veterans Appeals' construction of 38 U.S.C. § 5107(a) (1994). Epps has argued that the court erred in interpreting § 5107(a) to require the DVA to assist a veteran in developing a service-connected claim only after the submission of a "well grounded" claim. More specifically, Epps argues that § 5107(a) should be construed to provide for unconditional assistance to veterans, and that whether a claim is "well grounded" is relevant only to the question whether a claim should ultimately be allowed after development of the claim.

In arguing that we lack jurisdiction, the DVA notes that the Court of Veterans Appeals has determined that Epps's claim is not "well grounded," and that, in any event, he was provided with adequate assistance from the DVA. Therefore, the DVA argues that, even under Epps's proposed construction of § 5107(a), we can only affirm, because the court has determined that Epps was adequately assisted, a factual conclusion not reviewable by this court under 38 U.S.C. § 7292(d)(2). In effect, the DVA argues that Epps's appeal is moot. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1989) ("Article III denies federal courts the power to decide questions that cannot affect the rights of the litigants in the case before them.") (citations and internal quotations omitted).

We do not agree that we lack jurisdiction to interpret the chronological relationship between a "well grounded" claim and the duty to provide assistance set forth in § 5107(a). Our jurisdictional statute authorizes us to review the "validity of any statute or regulation ... or any interpretation thereof ... that was relied on by the Court [of Veterans Appeals] in making its decision." 38 U.S.C. § 7292(a). The question raised is one of interpretation of a statute. Even though there has been a determination by the Court of Veterans Appeals which we may not be able to review, and which, no matter how we resolve the legal issue presented, causes Epps to lose his appeal, we are entitled to decide all issues properly raised before us because we are not the court of last resort. See Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 97, 113 S.Ct. 1967, 1975, 124 L.Ed.2d 1 (1993). In the event of Supreme Court review, it would be desirable that the Court have our decision on the important legal issue of the construction of § 5107(a) which needs to be resolved. We consider it an alternative ground of affirmance of the Court of Veterans Appeals. See id. at 98, 113 S.Ct. at 1975 ("The Federal Circuit's decision to rely on one of two possible alternative grounds ... did not strip it of power to decide the second question, particularly when its decree was subject to review by this court.") (emphasis in original). Therefore, the appeal is not moot and we do not lack jurisdiction to review the court's construction of § 5107(a).

We now proceed to the merits. The construction of a statute is a legal question that we review de novo. Smith v. Brown, 35 F.3d 1516, 1517 (Fed.Cir.1994).

Section 5107 provides in relevant part:

(a) [A] person who submits a claim for benefits under a law administered by the Secretary [of Veterans Affairs] shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim....

(b) When, after consideration of all evidence and material of record in a case before the Department [of Veterans Affairs] with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.

38 U.S.C. § 5107 (1994).

As previously noted, Epps argues that DVA assistance...