Kelly v. Nicholson, 05-7116.
Decision Date | 13 September 2006 |
Docket Number | No. 05-7116.,05-7116. |
Citation | 463 F.3d 1349 |
Parties | William J. KELLY, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. |
Court | U.S. Court of Appeals — Federal Circuit |
Richard R. James, of Glen Allen, Virginia, argued for claimant-appellant. On the brief was Sandra E. Booth, of Columbus, Ohio.
Marla T. Conneely, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Todd M. Hughes, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martin J. Sendek, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before NEWMAN, MAYER, and RADER, Circuit Judges.
Opinion for the court filed by Circuit Judge MAYER.
William J. Kelly appeals the judgment of the United States Court of Appeals for Veterans Claims denying his application for reimbursement of legal fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Kelly v. Principi, 19 Vet.App. 57, 2004 WL 3154587 (Ct.App.Vet.Cl. Oct. 28, 2004). We reverse and remand.
In May 1989, Kelly filed a claim that he had balance problems and had been exposed to Agent Orange during his service in Vietnam. The Department of Veterans Affairs ("VA") Regional Office ("RO") subsequently informed him that his submission was insufficient and that he was required to specify a disability. Kelly responded that he suffered from "a developmental nerve problem" that required him to stop working. He said he was being treated but had not received a diagnosis from his doctors. VA made a progress note in July 1989 of "hypertension and ataxia, post Agent Orange," and Kelly underwent a VA examination in November 1989, which diagnosed him with dysthimia, secondary type and cerebellar ataxia. He also underwent a VA neurology examination in July 1990, which noted an impression of ataxia and a possibility of olivopontocerebellar atrophy ("OPCA"). He was again examined in August 1990 and was diagnosed with OPCA. He also submitted a July 1982 medical record from a private hospital indicating that he suffered from chronic cerebral ataxia of undetermined etiology. See Kelly v. Principi, No. 99-191, 2004 WL 308190 (Ct.App.Vet.Cl. Feb. 6, 2004) ( ).
The RO issued a rating decision in April 1994 denying Kelly's service connection claim. It stated that Kelly claimed service connection for an unnamed condition manifested by weakness in the legs, and the condition was subsequently diagnosed as OPCA. Kelly appealed the RO's decision to the Board of Veterans' Appeals, expressing disagreement with the "denial of his claim [for service connection] [ ] exposure to Agent Orange." The board remanded the claim for additional development and directed the RO to have Kelly examined by a neurologist "[i]f and only if [Kelly's] claim is found to be well grounded."
On remand, the RO obtained additional medical documentation. Kelly also underwent a brain and spinal cord VA examination in December 1997. The RO again concluded that olivopontocerebellar degeneration was an appropriate diagnosis and that it was a familial disorder with no known relationship to Agent Orange exposure. The case was returned to the board, which concluded Kelly's claim was not well grounded and thereby denied entitlement "to service connection for olivopontocerebellar atrophy." In re Kelly, No. 99-191 (Bd.Vet.App. Dec. 31, 1998). The board reasoned that there was "no competent evidence that [his OPCA] was present in service, compensably disabling within one year after separation from service or otherwise related to service, including herbicide exposure." Id. at 3. It also noted that his condition was not one that is presumed to result from Agent Orange exposure. Id. at 9.
Kelly appealed to the Veterans Court. While the appeal was pending, the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096, was enacted. In light of this, on January 5, 2001, the court vacated and remanded the board's decision with respect to the "claim for . . . service connection for [OPCA]." Kelly also argued that the RO and board had failed to consider his diagnosis of cerebellar ataxia. The court, however, said that his notice of disagreement ("NOD") was insufficient to confer it with jurisdiction over that claim. Kelly v. Gober, 17 Vet.App. 498, 2001 WL 47293, No. 99-191 (Ct.App.Vet.Cl. Jan. 5, 2001).
Kelly then filed a motion for reconsideration and for panel review. The government opposed both requests. The motion for reconsideration was denied in a single-judge order, which again concluded that the NOD was inadequate to confer jurisdiction over Kelly's ataxia claim. Kelly v. Principi, No. 99-191, 2001 WL 34396115 (Ct.App.Vet.Cl. Oct. 10, 2001). On February 28, 2002, the motion for panel review was granted. In light of Congress' repeal of the NOD jurisdiction requirement on December 27, 2001, Veterans Education and Benefits Expansion Act of 2001, Pub.L. No. 107-103, § 603(a), 115 Stat. 976, 999, the panel reinstated Kelly's appeal with respect to his ataxia claim. The panel said that although it reinstated the appeal on the ataxia ground, it made "no determination as to (1) whether [he] ever made any formal or informal claim for service connection for ataxia; (2) if [he] did make such a claim, whether that claim was reasonably raised to the Board; and (3) if [he] did not reasonably raise that claim to the Board, whether there is a final Board decision as to any such claim that is reviewable by this Court." Kelly v. Principi, 15 Vet.App. 433 (Vet.App. 2002).
The case was returned to the original judge who noted that the original remand with respect to what he termed the "OPCA service-connection claim" remained operative. With respect to the ataxia diagnosis, which the panel had reinstated, the court stated that Kelly "essentially argues that his symptomotology — balance problems and a developmental nerve problem, for which he received treatment at a VA hospital. . . in October 1989, and for which he applied for service connection in May 1989 — is attributable to ataxia, as to which the record on appeal contains a VA diagnosis rendered on July 13, 1989 and again on November 14, 1989." Kelly v. Principi, No. 99-191, at 2, 2004 WL 308190 (Ct.App. Vet.Cl. Feb. 6, 2004) ("Ataxia Remand Order") (citations omitted). In light of this discussion, it held that "[Kelly's] pending claim for service connection for neurological problems related to Agent Orange exposure has never been limited to a particular diagnosis in such a way as to preclude him from having VA develop his claim for a possible ataxia diagnosis and consider whether such a condition should be awarded service connection." Id. at 3. The court, however, declined to address this issue in the first instance and remanded it, stating: Id.
Kelly filed an application for reimbursement of attorneys' fees and expenses under EAJA for his ataxia claim. The Veterans Court denied the application, determining that he was not a "prevailing party." Kelly v. Principi, No. 99-191, at 2, 2004 WL 2421631 (Ct.App. Vet. Cl. Memorandum Decision Oct. 28, 2004; Judgment Dec. 21, 2004) ("EAJA Order"). Kelly appeals, and we exercise jurisdiction pursuant to 38 U.S.C. § 7292(a).
We review the Veterans Court's interpretation of EAJA de novo. Vaughn v. Principi, 336 F.3d 1351, 1354 (Fed.Cir. 2003). Our review is limited by statute, under which we "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d). However, unless addressing a constitutional issue, we may not review factual determinations or the application of law to the facts. Id. at § 7292(d)(2). "We have recognized, however, 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) (citing Brandenburg v. Principi, 371 F.3d 1362, 1363 (Fed.Cir. 2004); Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.Cir.2003)).
Under EAJA, a "prevailing party" in a civil action is entitled to attorneys' fees and expenses unless the government's position was substantially justified. 28 U.S.C. § 2412(d)(1)(A).* "The essential objective of the EAJA [is] to ensure that persons will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in the vindication of their rights . . . ." Johnson v. Gonzales, 416 F.3d 205, 208 (3d Cir.2005) (quoting Clarke v. Immigration & Naturalization Serv., 904 F.2d 172, 178 (3d Cir.1990)); see also Sullivan v. Hudson, 490 U.S. 877, 883, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). Removing such deterrents is imperative in the veterans benefits context, which is intended to be uniquely pro-claimant, Hodge v. West, 155 F.3d 1356, 1362-63 (Fed.Cir. 1998) (citations omitted); Collaro v. West, 136 F.3d 1304, 1309-10 (Fed.Cir.1998), and in which veterans generally are not represented by counsel before the RO and the board, see 38 U.S.C. § 5904(c)(1) ( ). EAJA is a vital complement to this...
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