284 F.3d 1335 (Fed. Cir. 2002), 99-7064, Forshey v. Principi

Docket Nº:99-7064
Citation:284 F.3d 1335
Party Name:REZI P. FORSHEY, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
Case Date:April 01, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1335

284 F.3d 1335 (Fed. Cir. 2002)

REZI P. FORSHEY, Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

99-7064

United States Court of Appeals, Federal Circuit

April 1, 2002

Page 1336

[Copyrighted Material Omitted]

Page 1337

Appealed from: United States Court of Appeals for Veterans Claims, Chief Judge Kenneth B. Kramer

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, for claimant-appellant.

Virginia M. Lum, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were David M. Cohen, Director; and Bryant G. Snee, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Page 1338

Deputy Assistant General Counsel, and David J. Barrans, Staff Attorney, Department of Veterans Affairs, of Washington, DC.

Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, for amicus curiae Paralyzed Veterans of America. With him on the brief was Linda E. Blauhut.

Robert V. Chisholm, Chisholm Chisholm & Kilpatrick LLP, of Providence, Rhode Island, for amicus curiae National Organization of Veterans' Advocates.

Stephen B. Kinnaird, Sidley & Austin, of Washington, DC, for amicus curiae National Veterans Legal Services Program. With him on the brief were Ronald S. Flagg, and Heather M. Walloch. Of counsel on the brief was Barton F. Stichman, National Veterans Legal Services Project, of Washington, DC.

Before MAYER, Chief Judge, NEWMAN, MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK, in which Circuit Judges LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, and PROST join. Circuit Judge MICHEL also joins except for Part I-F. Dissenting opinion filed by Chief Judge MAYER, in which Circuit Judge NEWMAN joins.

DYK, Circuit Judge.

On February 5, 2001, we granted rehearing en banc to consider the scope of our jurisdiction in cases coming to this court from the Court of Appeals for Veterans Claims under 38 U.S.C. § 7292, and the prudential rules that should govern the exercise of that jurisdiction where it exists.

We conclude that we have jurisdiction under section 7292(a) over: (1) issues concerning the validity of statutes or regulations on which the decision of the Court of Appeals for Veterans Claims depended; (2) issues of interpretation if the Court of Appeals for Veterans Claims elaborated the meaning of a statute or regulation and the decision depended on that interpretation; (3) issues of validity or interpretation raised before the Court of Appeals for Veterans Claims but not explicitly decided, if the decision would have been altered by adopting the position that was urged; and (4) other "relevant" questions of law. Our decisions in Smith v. West, 214 F.3d 1331 (Fed. Cir. 2000), cert. denied, 531 U.S. 1144 (2001), and Belcher v. West, 214 F.3d 1335 (Fed. Cir. 2000), cert. denied, 531 U.S. 1144 (2001), are modified to the extent, if any, that they are inconsistent with this new approach on jurisdictional issues.

We also hold that, even when jurisdiction exists, prudential considerations should severely limit the exercise of our authority to consider issues not raised or decided below. In this particular case, we affirm the judgment of the Court of Appeals for Veterans Claims.

BACKGROUND

The appellant, Rezi P. Forshey, is the widow of Charles O. Forshey, who served in the United States Navy from 1975 until his death on August 19, 1990. Mr. Forshey died while he was on active duty from injuries that he sustained in a motorcycle accident. Immediately preceding the accident, Mr. Forshey was riding his motorcycle on a winding rural road when he went off the road around a turn and crashed into a boulder. A police report stated that at the time of the accident, it was daylight, the weather was clear, and the road was Page 1339

dry. The report also noted that there was no sign of a mechanical failure of the motorcycle or its tires. Based on witness accounts, the police estimated that Mr. Forshey was traveling at not more than thirty miles per hour in a twenty mile per hour zone. A toxicology report from an autopsy performed the day after Mr. Forshey died showed that Mr. Forshey had a blood alcohol level of 0.139%. Apparently, the Navy views a blood alcohol level of 0.10% or higher as creating a presumption that the person is under the influence of alcohol. A Navy accident report dated August 29, 1990, stated that alcohol was a contributing factor to the accident. The report further concluded that Mr. Forshey suffered a broken neck and died instantly. However, the Navy report did not determine the ultimate cause of the accident.

In order for a spouse to receive veterans' benefits, the veteran's death generally must have been service-connected. See 38 U.S.C. § 1310 (2000).1 For the death to be service-connected, the death must be caused by an injury that occurred in the line of duty. See 38 U.S.C. § 101(16) (2000). Section 105(a) of title 38 creates a presumption of service connection for injuries or diseases that occur while a veteran is on active duty. Section 105(a) provides in pertinent part:

An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs.

38 U.S.C. § 105(a) (2000) (emphases added).

Thus the presumption of service connection may be overcome if the government establishes that the veteran's own willful misconduct or abuse of alcohol or drugs2 caused the injury leading to his death. The Secretary of Veterans Affairs has promulgated a regulation that defines "willful misconduct" in this context. 38 C.F.R. § 3.301(c)(2) (2001). The regulation provides that if "intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct." 38 C.F.R. § 3.301(c)(2) (2001).3 Section 5107(b) of title 38 established the "benefit of the doubt" rule. It provides in pertinent part:

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding Page 1340

any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

38 U.S.C. § 5107(b) (West Supp. 2001) (emphasis added).

The Department of Veterans Affairs Regional Office in Phoenix, Arizona, denied appellant's claim because it concluded that Mr. Forshey's death was proximately caused by his intoxication, which itself constituted willful misconduct.

Ms. Forshey appealed the decision of the Regional Office to the Board of Veterans' Appeals ("BVA"). The BVA applied a preponderance of the evidence standard stating that "the [Court of Appeals for Veterans Claims] has noted that, in light of the 'benefit of the doubt' rule established by 38 U.S.C.A. § 5107(b) (West 1991), 'the preponderance of the evidence must be against the claim for benefits to be denied.' Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990)." 4 In re Forshey, No. 94-07 681, slip op. at 8 (Bd. Vet. App. May 31, 1996). Examining all of the evidence, including "negative evidence," which "eliminates any other possible cause for the accident except for alcohol," the BVA concluded that "because the preponderance of the evidence demonstrates that alcohol was the proximate cause of the veteran's death, and the veteran's death consequently the result of his own willful misconduct, the appellant's claim for entitlement to service connection for the cause of the veteran's death must be denied." Id. at 12-13.

On appeal to the Court of Appeals for Veterans Claims, Ms. Forshey argued that the BVA had improperly interpreted 38 U.S.C. § 105(a) and 38 C.F.R. § 3.301(c)(2) to permit reliance on "negative evidence" to rebut the presumption of service connection. The Court of Appeals for Veterans Claims rejected this argument, stating:

In reaching its conclusion that intoxication was the proximate cause of the veteran's death, the Board considered what it referred to as "negative evidence," which is the evidence tending to disprove the existence of an intervening cause of the accident other than alcohol consumption. This included evidence indicating that the road surface was dry, that the weather was clear, that it was broad daylight, and that there was no apparent malfunction of the motorcycle. . . . The appellant argues that the Board impermissibly used this negative evidence to conclude that intoxication was the proximate cause of the accident.

. . [T]he Board acted properly in considering this evidence.

Forshey v. West, No. 96-1038, slip op. at 4 (Vet. App. Dec. 3, 1998). Based on the "negative evidence," the Court of Appeals for Veterans Claims found that the Board's decision was not clearly erroneous and affirmed.

At the Court of Appeals for Veterans Claims, appellant did not question the preponderance of the evidence standard; indeed, she assumed that it applied. Id. at 7. The Court of Appeals for Veterans Claims did not specifically address whether a preponderance of the evidence standard should be applied, but did apply that standard. Id. In addressing the applicable standard of proof, the Court of Appeals for Veterans Claims, citing Gilbert, 1 Vet. App. Page 1341

at 53-54, noted that "twice in its decision...

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