Patrick v. Shinseki

• Decision Date: 22 December 2011
• Docket Number: No. 2011–7012.,2011–7012.
• Citation: 668 F.3d 1325
• Parties: Carolyn J. PATRICK, Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

668 F.3d 1325

Carolyn J. PATRICK, Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2011–7012.

United States Court of Appeals, Federal Circuit.

Dec. 22, 2011.

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

Kenneth S. Kessler, Attorney, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, MAYER, and O'MALLEY, Circuit Judges.

MAYER, Circuit Judge.

Carolyn J. Patrick (“Mrs. Patrick”) appeals from a final judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying her application for an award of attorney fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). See Patrick v. Shinseki, 23 Vet.App. 512 (2010) (“ Patrick IV ”). We reverse and remand.

Background

This is the third time Mrs. Patrick has appealed to this court. The history of her claim seeking dependency and indemnity compensation is detailed in our previous decisions, see Patrick v. Nicholson, 242 Fed.Appx. 695 (Fed.Cir.2007) (“ Patrick III ”); Patrick v. Principi, 103 Fed.Appx. 383 (Fed.Cir.2004) (“ Patrick I ”), and need only be summarized here.

Mrs. Patrick's husband, James Curtis Patrick (“Patrick”), served on active duty in the United States Army from August 1958 through May 1959, when he was discharged due to rheumatic heart disease. Although Patrick's heart condition was not noted during the medical examination he underwent prior to his entry into service, subsequent in-service exams revealed heart abnormalities.

On May 26, 1959, Patrick filed a claim seeking service-connected benefits for rheumatic heart disease. The Board of Veterans' Appeals (“board”) denied his claim, concluding that he had suffered from “many severe cardiac symptoms” prior to his induction into service. Patrick subsequently filed several other claims seeking service-connected benefits for his heart disability, but all of these claims were denied.

On January 29, 1985, Patrick died of an acute myocardial infarction. Soon thereafter, Mrs. Patrick filed an application with the Department of Veterans Affairs (“VA”) for dependency and indemnity compensation, alleging that her husband had died as a result of service-connected heart disease. See 38 U.S.C. § 1310 (authorizing benefits for the surviving spouse of a veteran who dies from a service-connected disability). In a March 1986 decision, the board denied her claim, concluding that Patrick's rheumatic heart disease was incurred prior to his military service and that “the clinical evidence in its entirety fails to demonstrate that [Patrick's] antecedent rheumatic heart disease worsened during his short period of active service.”

In 1992, Mrs. Patrick filed a claim to reopen the board's 1986 decision, arguing that it contained clear and unmistakable error (“CUE”). She alleged that “if in fact [her husband's] heart condition existed prior to [his] service ... it worsened and was aggravated by service to the point of his being found unfit for duty and eventually discharge[d].” In 1999, however, the board denied Mrs. Patrick's request to reopen her claim, and this decision was affirmed, in 2002, by the Veterans Court. See Patrick v. Principi, No. 99–916, 2002 WL 31770858, 2002 U.S.App. Vet. Claims LEXIS 979 (Vet.App. Aug. 13, 2002).

Mrs. Patrick then appealed to this court. She argued that the presumption of soundness contained in 38 U.S.C. § 1111 can only be rebutted by clear and unmistakable evidence that: (1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service. See Patrick I, 103 Fed.Appx. at 384. We agreed. As we had recently explained in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004), both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service. See Patrick I, 103 Fed.Appx. at 384–85. Because the government had failed to establish that Patrick's rheumatic heart disease was not aggravated by his military service, we vacated the 2002 Veterans Court decision and remanded for reconsideration of Mrs. Patrick's claim. Id. at 385.

On remand, however, the Veterans Court failed to resolve the issue of whether the government had proven by clear and unmistakable evidence that Patrick's rheumatic heart disease was not aggravated during his active military service. Instead, the court reaffirmed the 1999 board decision denying Mrs. Patrick's CUE claim on the alternative ground that this court's interpretation of section 1111, which had been articulated in both Wagner and Patrick I, should not be given retroactive effect in the context of a CUE claim. See Patrick v. Nicholson, No. 99–916, 2006 WL 318822, at *9–10, 2006 U.S.App. Vet. Claims LEXIS 39, at *26–27 (Vet.App. Feb. 1, 2006) (“ Patrick II ”). In support, the Veterans Court relied upon this court's intervening decision in Jordan v. Nicholson, 401 F.3d 1296, 1298–99 (Fed.Cir.2005), which held that the VA's recent interpretation of 38 C.F.R. § 3.304, the implementing regulation for section 1111, did not have retroactive application in a CUE case. See Patrick II, 2006 WL 318822, at *9, 2006 U.S.App. Vet. Claims LEXIS 39, at *26.

On appeal, this court reversed, concluding that the decision of the Veterans Court was based upon a “misreading of Jordan.” Patrick III, 242 Fed.Appx. at 697. We explained that “Jordan addressed whether a change in the regulatory interpretation of a statute had retroactive effect on CUE claims, not whether [this court's] interpretation of [a] statute ... had retroactive effect on CUE claims.” Patrick III, 242 Fed.Appx. at 697. In Jordan, the question was whether retroactive effect should be given to the VA's determination that section 3.304(b) ¹, the implementing regulation for section 1111, was invalid because it was inconsistent with section 1111. See Jordan, 401 F.3d at 1298–99; Patrick III, 242 Fed.Appx. at 697–98. In contrast, Mrs. Patrick's claim did not involve the application of section 3.304, but was instead based directly on section 1111:

The limited holding of Jordan does not apply to Mrs. Patrick's case, for she never argued that the implementing regulation for § 1111 was invalid, that the VA's change in the interpretation of the statute in its regulation was retroactive, or that the 1986 Board erroneously applied the implementing regulation. Indeed, the 1986 Board decision does not even refer to the implementing regulation for § 1111.Patrick III, 242 Fed.Appx. at 698.

We made clear, moreover, that “[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.” Patrick III, 242 Fed.Appx. at 698. Because we concluded that the decision of the Veterans Court had been “neither in accordance with the law nor with our previous remand instructions,” we vacated the court's decision and again remanded for a determination of whether the government could rebut section 1111's presumption of soundness by providing clear and unmistakable evidence that Patrick's rheumatic heart disease had not been aggravated by his military service. Id.

The Veterans Court thereafter remanded Mrs. Patrick's claim to the board, which concluded that the government had failed to establish that Patrick's heart disease was not aggravated by his military service. Accordingly, the board granted Mrs. Patrick's claim for dependency and indemnity compensation.

Mrs. Patrick then filed an application for attorney fees and expenses under the EAJA. On June 29, 2009, the Veterans Court, in a single judge decision, denied Mrs. Patrick's application. The court subsequently issued a reconsideration decision, which again denied Mrs. Patrick's application for an EAJA award. The court stated that “when the statutory framework presents a confusing tapestry, the Secretary can be substantially justified in taking a position regardless of whether that position later turns out to be wrong.” Patrick IV, 23 Vet.App. at 515. The court determined, moreover, that because the VA's position was supported by the court's then-existing precedent, it “had a reasonable basis in law and fact.” Id. at 518. Mrs. Patrick filed a timely appeal to this court.

Discussion

We have jurisdiction over appeals from the Veterans Court under 38 U.S.C. § 7292. Interpretation of the EAJA is a question of law, subject to de novo review. Kelly v. Nicholson, 463 F.3d 1349, 1352 (Fed.Cir.2006). Although this court's jurisdiction over appeals from the Veterans Court does not extend to challenges to factual determinations or the application of a statute or regulation to the facts of a particular case, see 38 U.S.C. § 7292(d), “[w]e have recognized ... that where adoption of a particular legal standard dictates the outcome of a case based on undisputed facts, we may address that issue as a question of law,” Halpern v. Principi, 384 F.3d 1297, 1306 (Fed.Cir.2004). Thus, the issue of whether the Veterans Court applied the correct legal standard in evaluating whether the government's position was “substantially justified” for purposes of the EAJA is a legal determination that falls squarely within the scope of our appellate jurisdiction. Smith v. Principi, 343 F.3d 1358, 1361 (Fed.Cir.2003).

The essential objective of the EAJA ² is to ensure that litigants “will not be deterred from seeking review of, or defending against,...